ý
|
Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
|
||
For the quarterly period ended June 30, 2012
|
|||
Or
|
|||
o
|
Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
|
||
For the transition period from to .
|
DYAX CORP.
|
(Exact Name of Registrant as Specified in its Charter)
|
Delaware
|
04-3053198
|
|
(State of Incorporation)
|
(I.R.S. Employer Identification Number)
|
55 Network Drive, Burlington, MA 01803
|
(Address of Principal Executive Offices)
|
(617) 225-2500
|
(Registrant’s Telephone Number, including Area Code)
|
Page
|
|||
3 | |||
4
|
|||
5 | |||
6 | |||
24 | |||
37 | |||
37 | |||
38 | |||
38 | |||
Other Information | 56 | ||
57 | |||
58 | |||
59 |
June 30,
2012
|
December 31,
2011
|
|||||||
(In thousands, except share data)
|
||||||||
ASSETS
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$ | 29,531 | $ | 31,468 | ||||
Short-term investments
|
9,054 | 26,036 | ||||||
Accounts receivable, net of allowances for doubtful accounts of $45 and $115 at June 30, 2012 and December 31, 2011, respectively
|
5,975 | 6,092 | ||||||
Inventory
|
3,259 | 2,121 | ||||||
Current portion of restricted cash
|
— | 1,266 | ||||||
Other current assets
|
2,269 | 4,968 | ||||||
Total current assets
|
50,088 | 71,951 | ||||||
Fixed assets, net
|
5,609 | 4,881 | ||||||
Restricted cash
|
1,100 | 1,100 | ||||||
Other assets
|
7,094 | 5,443 | ||||||
Total assets
|
$ | 63,891 | $ | 83,375 | ||||
LIABILITIES AND STOCKHOLDERS' DEFICIT
|
||||||||
Current liabilities:
|
||||||||
Accounts payable and accrued expenses
|
$ | 14,626 | $ | 15,318 | ||||
Current portion of deferred revenue
|
6,105 | 6,637 | ||||||
Current portion of long-term obligations
|
481 | 101 | ||||||
Other current liabilities
|
354 | 1,709 | ||||||
Total current liabilities
|
21,566 | 23,765 | ||||||
Deferred revenue
|
7,419 | 9,265 | ||||||
Notes payable
|
75,379 | 75,372 | ||||||
Long-term obligations
|
969 | — | ||||||
Deferred rent and other long-term liabilities
|
2,971 | 2,372 | ||||||
Total liabilities
|
108,304 | 110,774 | ||||||
Commitments and contingencies
|
||||||||
Stockholders' deficit:
|
||||||||
Preferred stock, $0.01 par value; 1,000,000 shares authorized; 0 shares issued and outstanding
|
— | — | ||||||
Common stock, $0.01 par value; 200,000,000 shares authorized; 98,913,675 and 98,798,065 shares issued and outstanding at June 30, 2012 and December 31, 2011, respectively
|
989 | 988 | ||||||
Additional paid-in capital
|
450,738 | 448,527 | ||||||
Accumulated deficit
|
(496,142 | ) | (476,921 | ) | ||||
Accumulated other comprehensive income
|
2 | 7 | ||||||
Total stockholders' deficit
|
(44,413 | ) | (27,399 | ) | ||||
Total liabilities and stockholders' deficit
|
$ | 63,891 | $ | 83,375 |
Three Months Ended
June 30,
|
Six Months Ended
June 30,
|
|||||||||||||||
2012
|
2011
|
2012
|
2011
|
|||||||||||||
(In thousands, except share and per share data)
|
||||||||||||||||
Revenues:
|
||||||||||||||||
Product sales, net
|
$ | 9,164 | $ | 5,184 | $ | 17,174 | $ | 9,291 | ||||||||
Development and license fee revenues
|
4,866 | 16,691 | 8,345 | 20,798 | ||||||||||||
Total revenues, net
|
14,030 | 21,875 | 25,519 | 30,089 | ||||||||||||
Costs and expenses:
|
||||||||||||||||
Cost of product sales
|
416 | 282 | 954 | 521 | ||||||||||||
Research and development expenses
|
8,653 | 10,084 | 16,506 | 17,579 | ||||||||||||
Selling, general and administrative expenses
|
10,350 | 9,081 | 20,755 | 18,330 | ||||||||||||
Restructuring costs
|
— | — | 1,440 | — | ||||||||||||
Total costs and expenses
|
19,419 | 19,447 | 39,655 | 36,430 | ||||||||||||
Income (loss) from operations
|
(5,389 | ) | 2,428 | (14,136 | ) | (6,341 | ) | |||||||||
Other income (expense):
|
||||||||||||||||
Interest income
|
6 | 68 | 17 | 162 | ||||||||||||
Interest and other expenses
|
(2,556 | ) | (2,572 | ) | (5,102 | ) | (5,162 | ) | ||||||||
Total other expense
|
(2,550 | ) | (2,504 | ) | (5,085 | ) | (5,000 | ) | ||||||||
Net loss
|
(7,939 | ) | (76 | ) | (19,221 | ) | (11,341 | ) | ||||||||
Other comprehensive income (loss):
|
||||||||||||||||
Unrealized gain (loss) on investments
|
2 | 1 | (5 | ) | 9 | |||||||||||
Comprehensive loss
|
$ | (7,937 | ) | $ | (75 | ) | $ | (19,226 | ) | $ | (11,332 | ) | ||||
Basic and diluted net loss per share
|
$ | (0.08 | ) | $ | (0.00 | ) | $ | (0.19 | ) | $ | (0.11 | ) | ||||
Shares used in computing basic and diluted net loss per share
|
98,820,699 | 98,721,889 | 98,809,562 | 98,705,931 |
Six Months Ended June 30,
|
||||||||
2012
|
2011
|
|||||||
(In thousands)
|
||||||||
Cash flows from operating activities:
|
||||||||
Net loss
|
$ | (19,221 | ) | $ | (11,341 | ) | ||
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||||||
Amortization of purchased premium/discount
|
34 | 137 | ||||||
Depreciation and amortization of fixed assets and intangible assets
|
578 | 657 | ||||||
Non-cash interest expense
|
456 | 123 | ||||||
Compensation expenses associated with stock-based compensation plans
|
2,027 | 2,220 | ||||||
Provision for doubtful accounts
|
(35 | ) | — | |||||
Changes in operating assets and liabilities:
|
||||||||
Accounts receivable
|
152 | (5,358 | ) | |||||
Other current assets
|
2,699 | 172 | ||||||
Inventory
|
(2,901 | ) | (5,187 | ) | ||||
Other long-term assets
|
139 | (332 | ) | |||||
Accounts payable and accrued expenses
|
89 | 1,153 | ||||||
Deferred revenue
|
(2,378 | ) | (3,595 | ) | ||||
Long-term deferred rent
|
599 | (30 | ) | |||||
Net cash used in operating activities
|
(17,762 | ) | (21,381 | ) | ||||
Cash flows from investing activities:
|
||||||||
Purchase of investments
|
(6,057 | ) | — | |||||
Proceeds from maturity of investments
|
23,000 | 11,000 | ||||||
Purchase of fixed assets
|
(3,816 | ) | (198 | ) | ||||
Restricted cash
|
1,266 | 922 | ||||||
Net cash provided by investing activities
|
14,393 | 11,724 | ||||||
Cash flows from financing activities:
|
||||||||
Net proceeds from sale of common stock
|
— | 323 | ||||||
Repayment of long-term obligations
|
(129 | ) | (1,520 | ) | ||||
Proceeds from long-term obligations
|
1,382 | — | ||||||
Proceeds from the issuance of common stock under employee stock purchase plan and exercise of stock options
|
179 | 159 | ||||||
Net cash provided by (used in) financing activities
|
1,432 | (1,038 | ) | |||||
Net decrease in cash and cash equivalents
|
(1,937 | ) | (10,695 | ) | ||||
Cash and cash equivalents at beginning of the period
|
31,468 | 18,601 | ||||||
Cash and cash equivalents at end of the period
|
$ | 29,531 | $ | 7,906 | ||||
Supplemental disclosure of cash flow information:
|
||||||||
Interest paid
|
$ | 6,331 | $ | 5,883 |
|
●
|
Angioedema Franchise
|
|
●
|
Identifying diagnostic strategies to assist in the differentiation between histamine-mediated and plasma kallikrein (bradykinin) mediated angioedema, including development of a laboratory test.
|
|
●
|
Continuing the development of DX-2930, a fully human monoclonal antibody inhibitor of plasma kallikrein, which could be a candidate to prophylactically treat plasma kallikrein (bradykinin) mediated angioedemas.
|
|
●
|
Phage Display Licensing and Funded Research Program
|
|
●
|
Provide updated guidance on whether multiple elements exist, how the elements in an arrangement should be separated and how the arrangement considerations should be allocated to the separate elements;
|
|
●
|
Require an entity to allocate arrangement consideration to each element based on a selling price hierarchy, also called the relative selling price method, where the selling price for an element is based on vendor-specific objective evidence (VSOE), if available; vendor objective evidence (VOE), if available and VSOE is not available; or the best estimate of selling price (BESP), if neither VSOE or VOE is available;
|
|
●
|
Eliminate the use of the residual method and require an entity to allocate arrangement consideration using the selling price hierarchy.
|
Description (in thousands)
|
June 30,
2012
|
Quoted
Prices in
Active
Markets
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Significant
Unobservable
Inputs
(Level 3)
|
||||||||||||
Assets:
|
||||||||||||||||
Cash equivalents
|
$ | 21,877 | $ | 21,877 | $ | — | $ | — | ||||||||
Marketable debt securities
|
9,054 | — | 9,054 | — | ||||||||||||
Total
|
$ | 30,931 | $ | 21,877 | $ | 9,054 | $ | — |
Description (in thousands)
|
December 31,
2011
|
Quoted
Prices in
Active
Markets
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Significant
Unobservable
Inputs
(Level 3)
|
||||||||||||
Assets:
|
||||||||||||||||
Cash equivalents
|
$ | 8,825 | $ | 8,825 | $ | — | $ | — | ||||||||
Marketable debt securities
|
26,036 | — | 26,036 | — | ||||||||||||
Total
|
$ | 34,861 | $ | 8,825 | $ | 26,036 | $ | — |
June 30, 2012
|
||||||||||||||||
Description
|
Amortized
Cost
|
Gross
Unrealized
Gains
|
Gross
Unrealized
Losses
|
Fair Value
|
||||||||||||
US Treasury Bills and Notes (due within 1 year)
|
$ | 6,038 | $ | — | $ | — | $ | 6,038 | ||||||||
US Treasury Bills and Notes
(due after 1 year through 2 years)
|
3,014 | 2 | — | 3,016 | ||||||||||||
Total
|
$ | 9,052 | $ | 2 | $ | — | $ | 9,054 |
December 31, 2011
|
||||||||||||||||
Description
|
Amortized
Cost
|
Gross
Unrealized
Gains
|
Gross
Unrealized
Losses
|
Fair Value
|
||||||||||||
US Treasury Bills and Notes (due within 1 year)
|
$ | 23,013 | $ | 7 | $ | — | $ | 23,020 | ||||||||
US Treasury Bills and Notes
(due after 1 year through 2 years)
|
3,016 | — | — | 3,016 | ||||||||||||
Total
|
$ | 26,029 | $ | 7 | $ | — | $ | 26,036 |
June 30,
2012
|
December 31,
2011
|
|||||||
Raw Materials
|
$ | 888 | $ | 1,429 | ||||
Work in Progress
|
8,816 | 5,474 | ||||||
Finished Goods
|
246 | 119 | ||||||
Total
|
$ | 9,950 | $ | 7,022 |
June 30,
2012
|
December 31,
2011
|
|||||||
(In thousands)
|
||||||||
Laboratory equipment
|
$ | 9,148 | $ | 9,103 | ||||
Furniture and office equipment
|
1,588 | 1,095 | ||||||
Software and computers
|
4,692 | 4,445 | ||||||
Leasehold improvements
|
4,502 | 6,845 | ||||||
Construction in process
|
— | 3,960 | ||||||
Total
|
19,930 | 25,448 | ||||||
Less: accumulated depreciation and amortization
|
(14,321 | ) | (20,567 | ) | ||||
$ | 5,609 | $ | 4,881 |
June 30,
2012
|
December 31,
2011
|
|||||
Accounts payable
|
$
|
2,057
|
$
|
2,927
|
||
Accrued employee compensation and related taxes.
|
3,253
|
4,529
|
||||
Accrued expenses
|
2,775
|
1,591
|
||||
Accrued license fees
|
500
|
—
|
||||
Accrued legal
|
634
|
214
|
||||
Accrued drug substance manufacturing
|
2,618
|
—
|
||||
Accrued leasehold improvements
|
—
|
2,472
|
||||
Accrued restructuring
|
235
|
—
|
||||
Accrued sales allowances
|
857
|
525
|
||||
Other accrued liabilities
|
1,697
|
3,060
|
||||
Total
|
$
|
14,626
|
$
|
15,318
|
June 30,
2012
|
December 31,
2011
|
|||||||
Beginning balance
|
$ | 75,372 | $ | 56,406 | ||||
Accretion of discount
|
99 | 246 | ||||||
Loan activity:
|
||||||||
Net proceeds from additional loan
|
— | 20,000 | ||||||
Discount on additional loan
|
(43 | ) | (150 | ) | ||||
Interest Expense
|
4,962 | 9,932 | ||||||
Payments applied to principal
|
(96 | ) | (1,129 | ) | ||||
Payments applied to interest
|
(4,561 | ) | (8,224 | ) | ||||
Accrued interest payable
|
(354 | ) | (1,709 | ) | ||||
Ending balance
|
$ | 75,379 | $ | 75,372 |
Three Months Ended
June 30,
|
Six Months Ended
June 30,
|
|||||||||||||||
2012
|
2011
|
2012
|
2011
|
|||||||||||||
Compensation expense related to:
|
||||||||||||||||
Equity Incentive Plan
|
$ | 1,169 | $ | 1,204 | 2,011 | $ | 2,196 | |||||||||
Employee Stock Purchase Plan
|
8 | 12 | 17 | 24 | ||||||||||||
$ | 1,177 | $ | 1,216 | 2,028 | $ | 2,220 | ||||||||||
Stock-based compensation expense charged to:
|
||||||||||||||||
Research and development
|
$ | 194 | $ | 313 | $ | 378 | $ | 624 | ||||||||
Selling, general and administrative
|
$ | 983 | $ | 903 | $ | 1,595 | $ | 1,596 | ||||||||
Restructuring charges
|
$ | — | $ | — | $ | 55 | $ | — |
|
●
|
the potential benefits and commercial potential of KALBITOR® (ecallantide) for its approved indication and any additional indications;
|
|
●
|
our commercialization of KALBITOR, including revenues and costs, and the potential benefits of new sales initiatives;
|
|
●
|
the potential for market approval for KALBITOR in markets outside the United States;
|
|
●
|
plans and anticipated timing for pursuing additional indications and uses for ecallantide and other product candidates to address plasma kallikrein (bradykinin) mediated angioedemas;
|
|
●
|
plans to enter into additional collaborative and licensing arrangements for ecallantide and for other compounds in development;
|
|
●
|
estimates of potential markets for our products and product candidates;
|
|
●
|
the sufficiency of our cash, cash equivalents and short-term investments;
|
|
●
|
the impact of the expiration of certain of our phage display patents under the LFRP; and
|
|
●
|
expected future revenues and operating results, including our financial guidance for 2012 and 2013.
|
|
●
|
Angioedema Franchise
|
|
●
|
Identifying diagnostic strategies to assist in the differentiation between histamine-mediated and plasma kallikrein (bradykinin) mediated angioedema, including development of a laboratory test.
|
|
●
|
Continuing our development of DX-2930, a fully human monoclonal antibody inhibitor of plasma kallikrein, which could be a candidate to prophylactically treat plasma kallikrein (bradykinin) mediated angioedemas.
|
|
●
|
Phage Display Licensing and Funded Research Program
|
|
●
|
HAE and KALBITOR. In February 2010, we began selling KALBITOR in the United States for treatment of acute attacks of HAE in patients 16 years of age and older. We are selling KALBITOR on our own in the United States. Working with international partners, we intend to seek approval for and commercialize KALBITOR for HAE and other angioedema indications in markets outside of the United States. We have entered into agreements for others to develop and commercialize subcutaneous ecallantide for the treatment of HAE and other therapeutic indications throughout Europe, Japan, Australia, New Zealand and other countries in the Middle East.
|
|
●
|
Identification of plasma kallikrein (bradykinin) mediated angioedemas. As part of extending the angioedema franchise, we have launched a program to identify one or more diagnostic strategies that will assist in the differentiation of plasma kallikrein (bradykinin) mediated angioedema from histamine-mediated angioedema, in order to direct appropriate treatment. These tools are expected to be relevant to both normal C1esterase inhibitor (C1-INH) and C1-INH deficient patients and will enable the identification of plasma kallikrein (bradykinin) mediated angioedema, including Type III HAE and angioedema of unknown origin, or idiopathic angioedema. A laboratory based test is expected to begin clinical validation in 2013.
|
|
●
|
DX-2930 - Antibody for plasma kallikrein (bradykinin) mediated angioedemas. Leveraging our knowledge of angioedema and the kallikrein-kinin pathway, we are investigating the use of a fully human monoclonal antibody that is an inhibitor of plasma kallikrein and which would be a candidate to prophylactically treat plasma kallikrein (bradykinin) mediated angioedemas. After completing a series of pharmacokinetic, tolerability and preclinical studies, we believe DX-2930 may be effective for prophylactically treating these indications. We expect to file an Investigational New Drug application (IND) for this antibody in mid-2013.
|
|
●
|
US Bioservices Corporation (US Bio), serves as a specialty pharmacy for KALBITOR and also administers KALBITOR Access, which provides comprehensive call center services for patients and healthcare providers seeking information and access to KALBITOR; and
|
|
●
|
ASD Specialty Healthcare Inc. (ASD) serves as a wholesale distributor for KALBITOR to treating hospitals in the United States.
|
|
●
|
Library Licenses. Under our library license program, we grant our licensees rights to use our phage display libraries in connection with their internal therapeutic development programs. These libraries are protected by a patent portfolio in which the last patent is scheduled to expire in 2024. We also provide these licensees with related materials and training so that they may rapidly identify compounds that bind with high affinity to therapeutic targets. The period during which our licensees may use our libraries is typically limited to a 4 to 5 year term. Library license agreements contain up-front license fees, annual maintenance fees, milestone payments based on successful product development, and royalties based on any future product sales. We have approximately 20 library licensees, including Amgen, Aveo, Bayer Schering, Biogen Idec, Boehringer Ingelheim, CSL Behring, ImClone Systems (a wholly-owned subsidiary of Eli Lilly), Kadmon, Merck Serono, Novo Nordisk, sanofi-aventis and Emergent BioSolutions (formerly known as Emergent Trubion).
|
|
●
|
Funded Research. Under our funded research program, we have performed funded research for various collaborators using our phage display libraries to identify, characterize and optimize antibodies that bind to disease targets provided by the collaborators. Funded research agreements provide for fees, technical and development milestones, and royalties based on any future product sales. Our funded research collaborators with products currently in development include Baxter Healthcare, Biogen Idec, Merck Serono, Merrimack, and Emergent BioSolutions (formerly known as Trubion).
|
|
●
|
Patent Licenses. Under our patent license program, we previously granted other biopharmaceutical and pharmaceutical companies non-exclusive licenses to use certain of our phage display patents to discover and develop biologic compounds for use in specified fields. The last of these patents will expire in November 2012. We do not anticipate entering into future agreements for this patent portfolio after expiry. We do not expect the expiration of these patents to have a material impact on our LFRP business.
|
2012
|
2011
|
|||||||
Total gross product sales
|
$ | 9,931 | $ | 5,411 | ||||
Prompt pay and other discounts
|
$ | (355 | ) | $ | (149 | ) | ||
Government rebates and chargebacks
|
(301 | ) | (58 | ) | ||||
Returns
|
(111 | ) | (20 | ) | ||||
Product sales allowances
|
$ | (767 | ) | $ | (227 | ) | ||
Total product sales, net
|
$ | 9,164 | $ | 5,184 | ||||
Total product sales allowances as a percent of gross product sales
|
7.7 | % | 4.2 | % |
Three Months
Ended June 30,
|
||||||
2012
|
2011
|
|||||
(In thousands)
|
||||||
KALBITOR development costs
|
$ |
5,526
|
$ |
5,817
|
||
Other research and development expenses
|
2,506
|
2,961
|
||||
LFRP pass-through fees
|
621
|
1,306
|
||||
Research and development expenses
|
$ |
8,653
|
$ |
10,084
|
2012
|
2011
|
|||||||
Total gross product sales
|
$ | 18,540 | $ | 9,704 | ||||
Prompt pay and other discounts
|
$ | (643 | ) | $ | (255 | ) | ||
Government rebates and chargebacks
|
(536 | ) | (144 | ) | ||||
Returns
|
(187 | ) | (14 | ) | ||||
Product sales allowances
|
$ | (1,366 | ) | $ | (413 | ) | ||
Total product sales, net
|
$ | 17,174 | $ | 9,291 | ||||
Total product sales allowances as a percent of gross product sales
|
7.4 | % | 4.3 | % |
Six Months
Ended June 30,
|
||||||
2012
|
2011
|
|||||
(In thousands)
|
||||||
KALBITOR development costs
|
$ |
10,569
|
$ |
10,420
|
||
Other research and development expenses
|
4,862
|
5,709
|
||||
LFRP pass-through fees
|
1,075
|
1,450
|
||||
Research and development expenses
|
$ |
16,506
|
$ |
17,579
|
June 30, 2012
|
December 31, 2011
|
|||||||
(in thousands)
|
||||||||
Cash and cash equivalents
|
$ | 29,531 | $ | 31,468 | ||||
Short-term investments
|
9,054 | 26,036 | ||||||
Total cash, cash equivalents and investments
|
$ | 38,585 | $ | 57,504 |
2012
|
2011
|
|||||||
Net cash used in operating activities
|
$ | (17,762 | ) | $ | (21,381 | ) | ||
Net cash provided by investing activities
|
14,393 | 11,724 | ||||||
Net cash provided by (used in) financing activities
|
1,432 | (1,038 | ) | |||||
Net decrease in cash and cash equivalents
|
$ | (1,937 | ) | $ | (10,695 | ) |
|
●
|
the amount of future sales of KALBITOR and related costs to manufacture and sell the product;
|
|
●
|
the cost and timing of our research and development, manufacturing and commercialization activities;
|
|
●
|
the establishment of new collaboration and licensing arrangements;
|
|
●
|
the timing and results of clinical trials, including a failure to receive the required regulatory approvals to commercialize ecallantide in additional indications and other product candidates;
|
|
●
|
the timing, receipt and amount of payments, if any, from current and prospective collaborators and licensees, including the completion of certain milestones; and
|
|
●
|
revenue recognition and other generally accepted accounting policies.
|
|
●
|
future sales levels of KALBITOR and any other commercial products and the profitability of such sales, if any;
|
|
●
|
the timing and cost to develop, obtain regulatory approvals for and commercialize other product candidates and additional indications for ecallantide;
|
|
●
|
maintaining or expanding our existing collaborative and license arrangements and entering into additional arrangements on terms that are favorable to us;
|
|
●
|
the amount and timing of milestone and royalty payments from our collaborators and licensees related to their progress in developing and commercializing products;
|
|
●
|
our decision to manufacture, or have third parties manufacture, the materials used in KALBITOR and any other product candidates;
|
|
●
|
competing technological and market developments;
|
|
●
|
the progress of our development programs;
|
|
●
|
the costs of prosecuting, maintaining, defending and enforcing our patents and other intellectual property rights;
|
|
●
|
the amount and timing of additional capital equipment purchases; and
|
|
●
|
the overall condition of the financial markets.
|
|
●
|
the number of patients with HAE who are diagnosed with the disease and identified to us;
|
|
●
|
the number of patients with HAE who may be treated with KALBITOR;
|
|
●
|
acceptance of KALBITOR in the medical community;
|
|
●
|
the frequency of HAE patients' use of KALBITOR to treat their acute attacks of HAE;
|
|
●
|
HAE patients' ability to obtain and maintain sufficient coverage or reimbursement by third-party payers for the use of KALBITOR;
|
|
●
|
our ability to effectively market and distribute KALBITOR in the United States;
|
|
●
|
competition from other products that treat HAE;
|
|
●
|
the maintenance of marketing approval in the United States and the receipt and maintenance of marketing approval from foreign regulatory authorities;
|
|
●
|
our maintenance of commercial manufacturing capabilities through third-party manufacturers; and
|
|
●
|
our ability to maintain sufficient inventories to supply KALBITOR for patient use.
|
|
●
|
Manufacturers of corticosteroids, including danazol, which we estimate are still used to prophylactically treat a significant number of identified HAE patients.
|
|
●
|
ViroPharma Inc. — ViroPharma markets a plasma-derived C1-esterase inhibitor, known as Cinryze®, which is administered intravenously. Cinryze is approved in the US for routine prophylaxis against angioedema attacks in adolescent and adult patients with HAE, and has orphan drug designation from the FDA. The FDA has also approved patient labeling for Cinryze to include self-administration for routine prophylaxis once a patient is properly trained by his or her healthcare provider. ViroPharma has also received approval in the EU where the product is approved for the treatment and pre-procedure prevention of angioedema attacks in adults and adolescents with HAE, and routine prevention of angioedema attacks in adults and adolescents with severe and recurrent attacks of HAE, who are intolerant to or insufficiently protected by oral prevention treatments or patients who are inadequately managed with repeated acute treatment. The EU approval includes a self-administration option for appropriately trained patients. ViroPharma has also completed two Phase 2 trials evaluating subcutaneous administration of Cinryze. One of these trials evaluated a formulation that uses a proprietary drug delivery platform from Halozyme.
|
|
●
|
Shire plc— Shire markets its bradykinin receptor antagonist, known as Firazyr® (icatibant), which is administered subcutaneously. Firazyr is approved in the US, Europe, and certain other countries. Firazyr is approved in these markets for the treatment of acute HAE attacks in adult patients. The US and EU labels allow for patients to self-administer Firazyr following training by their healthcare provider. Firazyr has orphan drug designations from the FDA and in Europe.
|
|
●
|
CSL Behring— CSL Behring markets a plasma-derived C1-esterase inhibitor, known as Berinert®, which is administered intravenously. Berinert is approved in the US for the treatment of acute abdominal, facial or laryngeal attacks of HAE in adults and adolescents, and has orphan drug designation from the FDA. The FDA has also approved patient labeling for Berinert to include self-administration after proper training by a healthcare professional. Berinert is also approved in the EU, Japan and several rest-of-world markets for the treatment of acute attacks of HAE. CSL Behring announced in May 2012 that they had commenced an international Phase I/II study of a volume-reduced subcutaneous formulation of C1-INH which will evaluate the pharmacokinetics, pharmacodynamics and safety of various doses of C1-INH.
|
|
●
|
Pharming Group NV— Pharming markets a recombinant C1-esterase inhibitor, known as Ruconest™, which is administered intravenously. Ruconset is approved in the EU for the treatment of acute HAE attacks in adult patients. In the US, Pharming's recombinant C1-esterase inhibitor is known as Rhucin®. In July 2012, Pharming and US partner Santarus announced they had reached full recruitment in their Phase 3 trial for Ruconest. Pharming's recombinant C1-esterase inhibitor has Fast Track status from the FDA and orphan drug designations from the FDA and in Europe.
|
|
●
|
administrative and judicial sanctions, including warning letters;
|
|
●
|
fines and other civil penalties;
|
|
●
|
withdrawal of a previously granted approval;
|
|
●
|
interruption of production;
|
|
●
|
operating restrictions;
|
|
●
|
product recall or seizure; injunctions; and
|
|
●
|
criminal prosecution.
|
|
●
|
lessen the frequency with which physicians decide to prescribe KALBITOR;
|
|
●
|
encourage physicians to stop prescribing KALBITOR to their patients who previously had been prescribed KALBITOR;
|
|
●
|
cause serious adverse events and give rise to product liability claims against us; and
|
|
●
|
result in our need to withdraw or recall KALBITOR from the marketplace.
|
|
●
|
we or our collaborators must demonstrate through clinical trials that the proposed product is safe and effective for its intended use;
|
|
●
|
we have limited experience in conducting the clinical trials necessary to obtain regulatory approval; and
|
|
●
|
data obtained from preclinical and clinical activities are subject to varying interpretations, which could delay, limit or prevent regulatory approvals.
|
|
●
|
decreased demand for KALBITOR or any other product candidates;
|
|
●
|
injury to our reputation;
|
|
●
|
withdrawal of clinical trial volunteers;
|
|
●
|
related litigation costs; and
|
|
●
|
substantial monetary awards to plaintiffs.
|
|
●
|
are not obligated to develop or market product candidates discovered using our phage display technology;
|
|
●
|
may not perform their obligations as expected, or may pursue alternative technologies or develop competing products;
|
|
●
|
control many of the decisions with respect to research, clinical trials and commercialization of product candidates we discover or develop with them or have licensed to them;
|
|
●
|
may terminate their collaborative arrangements with us under specified circumstances, including, for example, a change of control, with short notice; and
|
|
●
|
may disagree with us as to whether a milestone or royalty payment is due or as to the amount that is due under the terms of our collaborative arrangements.
|
|
●
|
we may be unable to obtain or maintain patent or other intellectual property protection for any products or processes that we may develop or have developed;
|
|
●
|
third parties may obtain patents covering the manufacture, use or sale of these products or processes, which may prevent us from commercializing any of our products under development globally or in certain regions; or
|
|
●
|
our patents or any future patents that we may obtain may not prevent other companies from competing with us by designing their products or conducting their activities so as to avoid the coverage of our patents.
|
|
●
|
the diversion of management's attention from core business concerns;
|
|
●
|
the failure to exploit acquired technologies effectively or integrate successfully the acquired businesses;
|
|
●
|
the loss of key employees from either our current business or any acquired businesses; and
|
|
●
|
the assumption of significant liabilities of acquired businesses.
|
|
●
|
public announcements by us, our competitors or others;
|
|
●
|
developments concerning proprietary rights, including patents and litigation matters;
|
|
●
|
publicity regarding actual or potential clinical results or developments with respect to products or compounds we or our collaborators are developing;
|
|
●
|
regulatory decisions in both the United States and abroad;
|
|
●
|
public concern about the safety or efficacy of new technologies;
|
|
●
|
issuance of new debt or equity securities;
|
|
●
|
general market conditions and comments by securities analysts; and
|
|
●
|
quarterly fluctuations in our revenues and financial results.
|
EXHIBIT
NO.
|
DESCRIPTION
|
|
3.1
|
Amended and Restated Certificate of Incorporation of the Company. Filed as Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q (File No. 000-24537) for the quarter ended September 30, 2008 and incorporated herein by reference.
|
|
3.2
|
Certificate of Amendment of the Company’s Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 000-24537) filed on May 13, 2011 and incorporated herein by reference.
|
|
3.3
|
Amended and Restated By-laws of the Company. Filed as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q (File No. 000-24537) for the quarter ended September 30, 2008 and incorporated herein by reference.
|
|
10.1†
|
Fourth Amendment to Joint Development and License Agreement by and between the Company and Sigma-Tau Rare Diseases S.A., as successor-in-interest to Defiante Farmaceutica S.A. dated as of May 29, 2012. Filed herewith.
|
|
10.2†
|
Fifth Amendment to Joint Development and License Agreement by and between the Company and Sigma-Tau Rare Diseases S.A., as successor-in-interest to Defiante Farmaceutica S.A. dated as of June 21, 2012. Filed herewith.
|
|
10.3†
|
Agreement by and between the Company and Fujifilm Diosynth Biotechnologies UK Limited, dated as of June 29, 2012. Filed herewith.
|
|
10.4
|
Amended and Restated 1995 Equity Incentive Plan of the Company. Filed as Exhibit 99.1 to the Company’s Registration Statement on Form S-8 (File No. 000-24537) filed on June 28, 2012 and incorporated herein by reference.
|
|
31.1
|
Certification of Chief Executive Officer Pursuant to §240.13a-14 or §240.15d-14 of the Securities Exchange Act of 1934, as amended. Filed herewith.
|
|
31.2
|
Certification of Chief Financial Officer Pursuant to §240.13a-14 or §240.15d-14 of the Securities Exchange Act of 1934, as amended. Filed herewith.
|
|
32
|
Certification pursuant to 18 U.S.C. Section 1350. Filed herewith.
|
|
101*
|
The following materials from Dyax Corp.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, formatted in XBRL (eXtensible Business Reporting Language); (i) Consolidated Balance Sheets as of June 30, 2012 and December 31, 2011, (ii) Consolidated Statements of Operations and Comprehensive Income (Loss) for the three and six months ended June 30, 2012 and 2011, (iii) Consolidated Statements of Cash Flows for the six months ended June 30, 2012 and 2011, and (iv) Notes to Consolidated Financial Statements. [confirm now subject to detailed tagging]
|
|
*
|
Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.
|
|
†
|
This Exhibit has been filed separately with the Commission pursuant to an application for confidential treatment. The confidential portions of this Exhibit have been omitted and are marked by an asterisk. |
DYAX CORP.
|
||
Date: August 2, 2012
|
||
/s/George Migausky
|
||
George Migausky
Executive Vice President and
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
||
EXHIBIT
NO.
|
DESCRIPTION
|
|
3.1
|
Amended and Restated Certificate of Incorporation of the Company. Filed as Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q (File No. 000-24537) for the quarter ended September 30, 2008 and incorporated herein by reference.
|
|
3.2
|
Certificate of Amendment of the Company’s Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 000-24537) filed on May 13, 2011 and incorporated herein by reference.
|
|
3.3
|
Amended and Restated By-laws of the Company. Filed as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q (File No. 000-24537) for the quarter ended September 30, 2008 and incorporated herein by reference.
|
|
10.1†
|
Fourth Amendment to Joint Development and License Agreement by and between the Company and Sigma-Tau Rare Diseases S.A., as successor-in-interest to Defiante Farmaceutica S.A. dated as of May 29, 2012. Filed herewith.
|
|
10.2†
|
Fifth Amendment to Joint Development and License Agreement by and between the Company and Sigma-Tau Rare Diseases S.A., as successor-in-interest to Defiante Farmaceutica S.A. dated as of June 21, 2012. Filed herewith.
|
|
10.3†
|
Agreement by and between the Company and Fujifilm Diosynth Biotechnologies UK Limited, dated as of June 29, 2012. Filed herewith.
|
|
10.4
|
Amended and Restated 1995 Equity Incentive Plan of the Company. Filed as Exhibit 99.1 to the Company’s Registration Statement on Form S-8 (File No. 000-24537) filed on June 28, 2012 and incorporated herein by reference.
|
|
31.1
|
Certification of Chief Executive Officer Pursuant to §240.13a-14 or §240.15d-14 of the Securities Exchange Act of 1934, as amended. Filed herewith.
|
|
31.2
|
Certification of Chief Financial Officer Pursuant to §240.13a-14 or §240.15d-14 of the Securities Exchange Act of 1934, as amended. Filed herewith.
|
|
32
|
Certification pursuant to 18 U.S.C. Section 1350. Filed herewith.
|
|
101*
|
The following materials from Dyax Corp.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, formatted in XBRL (eXtensible Business Reporting Language); (i) Consolidated Balance Sheets as of June 30, 2012 and December 31, 2011, (ii) Consolidated Statements of Operations and Comprehensive Income (Loss) for the three and six months ended June 30, 2012 and 2011, (iii) Consolidated Statements of Cash Flows for the six months ended June 30, 2012 and 2011, and (iv) Notes to Consolidated Financial Statements.
|
|
*
|
Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.
|
|
†
|
This Exhibit has been filed separately with the Commission pursuant to an application for confidential treatment. The confidential portions of this Exhibit have been omitted and are marked by an asterisk. |
1.
|
All references to Defiante Farmacêutica S.A. (Defiante) contained in the Amended Agreement shall be deemed to refer to Sigma Tau Rare Diseases S.A. (STRD).
|
|
2.
|
Exhibit A to the Amended Agreement is hereby deleted in its entirety and replaced by Exhibit A attached to this Fourth Amendment. For the avoidance of doubt, the countries of the Middle East and North Africa, as well as Brazil and Argentina, have been removed from the STRD Territory and all rights to Develop and Commercialize Product in such countries has been returned to Dyax. STRD shall, within [*****] after the Fourth Amendment Date, transfer to Dyax all records and materials available to STRD and relating to STRD's Product-related activities in such countries, including regulatory correspondence and filings, and copies of any third party agreements, if any (it being understood that Dyax will have no obligations under any such agreements).
|
3.
|
Section 4.2 (a) of the Amended Agreement is hereby deleted in its entirety and replaced by the following, in lieu thereof:
|
|
4.2
|
HAE Indication.
|
|
(a)
|
HAE Development Plan. As soon as possible after the Fourth Amendment Date, STRD and Dyax shall jointly complete, and the JSC shall approve by [*****], a formal document that will detail STRD's [*****] Efforts to Commercialize Product in the Field in the STRD Territory (the "HAE Development Plan") in accordance with its obligations under Section 5.1 and, as to Europe, in accordance with the provisions of Section 6.7 hereof. The HAE Development Plan shall include all activities that are necessary to obtain Regulatory Approval of the Product in the Field in the Additional STRD Territory; strategies and timelines for completing such activities, together with the annual budget for expenses related thereto. For the sake of clarity, the HAE Development Plan shall require STRD to show meaningful progress towards the Commercialization of Product in the Second Additional STRD Territory by [*****]. The HAE Development Plan shall also allocate responsibility between the Parties for such activities, subject to Section 4.2(c), (d) and (e) below and each Party's financial obligations under Section 7.3.
|
(i)
|
each Party shall review the HAE Development Plan not less frequently than quarterly and shall develop detailed and specific updates to the HAE Development Plan, until the completion of the activities covered thereunder;
|
(ii)
|
each Party shall submit all such updates to the JSC for review and approval at each meeting of the JSC; and
|
(iii)
|
the JSC shall review proposed updates to the HAE Development Plan at the next scheduled meeting of the JSC, or earlier if the JSC so agrees, and may approve such proposed updates in its discretion and, upon such approval by the JSC, the HAE Development Plan shall be amended accordingly.
|
4.
|
Section 5.1(b) of the Amended Agreement is hereby deleted in its entirety and replaced by the following, in lieu thereof:
|
|
(b)
|
STRD shall use [*****] Efforts to obtain Regulatory Approval and Commercialize Product in the Additional STRD Territory for the HAE Indication and any Additional Indications that are Jointly Developed by the Parties in the Field. The parties acknowledge and agree that, among other things, this Section 5.1(b) shall require that STRD shall file for Regulatory Approval of the Product in the Additional STRD Territory in accordance with the timelines set forth in the HAE Development Plan to be agreed upon by [*****] (as per Section 4.2 above). Notwithstanding the foregoing, if STRD fails to complete any such activities in accordance with the applicable timeline set forth in the HAE Development Plan as a result of Dyax's failure or delay in meeting any obligation to STRD under this Agreement, then the timeline shall be extended to reasonably adjust for such failure or delay.
|
5.
|
Article VI of the Amended Agreement is hereby amended to insert the following Section 6.7 at the end of such Article:
|
|
6.7
|
Supply of Drug for Named Patient Program in Europe. Dyax and STRD agree that STRD may initiate a Named Patient Program in Europe only. For the purposes of this Section 6.7, a "Named Patient Program" or "NPP" shall mean a program to supply Product in accordance with Article 5 of Directive 2001/83/EC applicable to products which do not have a marketing authorisation for the specific therapeutic indication for which it is prescribed in the country of destination and are supplied to meet the special needs of a specific patient under the order of a medical practitioner or other person lawfully permitted to prescribe such products to such patient in accordance with applicable laws and regulations in the relevant country. Solely for Product ordered and used by STRD in connection with the Named Patient Program in Europe, the following terms and conditions shall apply:
|
(a)
|
Licensed Indications. Product supplied by STRD for use in the Named Patient Program in Europe may be used in any indication for which it has been prescribed within the angioedema field (including without limitation hereditary angioedema, acquired angioedema, drug-induced angioedema and/or idiopathic angioedema).
|
(b)
|
Orders for NPP Product; Delivery. STRD may order NPP Product at any time and in any quantities; provided that all such NPP Product shall be delivered by Dyax Free Carrier / FCA (Incoterms 2010) from Dyax’s manufacturing or storage facilities. Alternatively, STRD can request that NPP Product be delivered by Dyax CIP (ICC Incoterms 2010) to a predetermined facility designated by STRD, provided that if such a request is made, STRD shall reimburse Dyax for all shipping-related costs (including insurance). All NPP Product shall be delivered within [*****] following the receipt of the relevant purchase order by Dyax. At the time of delivery, all NPP Product shall have at least [*****] of shelf life remaining.
|
(c)
|
Manufacturing Specifications and Labeling. All NPP Product shall be manufactured, packaged and labeled according to the specifications submitted to and approved by Regulatory Authorities in the United States of America for the Product commercialized by Dyax in the United States of America under Dyax’s Regulatory Approval.
|
(d)
|
Purchase Price. With respect to any amount of NPP Product delivered by Dyax to STRD, STRD shall pay to Dyax an amount equal to [*****] of the Manufacturing Cost for such NPP Product. For the purpose of this Section 6.7 only, Manufacturing Cost shall be adjusted to include the [*****] under the [*****] Agreement as a result of applicable NPP Product sales, provided that the total amount to be paid by STRD for the NPP Product shall in no case be higher than [*****] per pack of 3 vials (such cap to be adjusted accordingly in case a different formulation be available). The purchase price shall be due within [*****] after receipt of an invoice issued by Dyax upon delivery. No other payment shall be due from STRD to Dyax in connection with the purchase of NPP Product, and no milestone payment or Contribution Payment shall be due under Sections 7.2, 7.4 or 7.5 with respect to sales of NPP Product in Europe.
|
(e)
|
Program Responsibility. Subject to Article XI of this Agreement, STRD shall be fully responsible for the conduct of the Named Patient Program in Europe in accordance with all applicable laws and regulations and terms and conditions of this Agreement. Dyax shall provide STRD with all reasonable support required by the terms of this Agreement in connection with the conduct of the Named Patient Program in Europe (whether conducted by STRD or its designee).
|
(f)
|
Program Termination. Upon [*****] prior written notice to STRD, Dyax may terminate the Named Patient Program in Europe if the Product receives Regulatory Approval in any indication by EMA.
|
6.
|
Section 7.2(c) of the Amended Agreement is hereby deleted in its entirety and replaced by the following, in lieu thereof:
|
|
(c)
|
Milestones for the Additional STRD Territory. Within [*****] following the occurrence of each of the following events by STRD, its Affiliates or sublicensees with respect to a Product and upon receipt of the relevant invoice, STRD shall make the following one-time milestone payments to Dyax:
|
Milestone Event
|
Payment
|
|
(1) |
Upon first filing for Regulatory Approval in Australia or New Zealand.
|
[*****]
|
(2) |
Upon first Regulatory Approval in Australia or New Zealand
|
[*****]
|
(3) |
Upon First Commercial Sale in Australia or New Zealand
This milestone shall only be due if STRD is able to secure a price reimbursement approval for the Product in excess of [*****] per treatment in Australia or New Zealand
|
[*****]
|
7.
|
Article VII of the Amended Agreement is hereby amended to insert the following Sections 7.14 at the end of such Article:
|
|
7.14
|
Contribution Payments by Dyax.
|
(a)
|
Within [*****] following the completion of each calendar quarter during the Term of this Agreement, Dyax shall pay to STRD a quarterly contribution payment equal to twelve and one-half percent (12.5%) of any amounts received by Dyax during the prior quarter as a result of sales of Product in the following countries: Morocco, Algeria, Tunisia, Egypt, Libya, Eritrea, Mauritania, Somalia , Ethiopia, Jordan, Syria, Lebanon, Saudi Arabia, Oman, Bahrain, United Arab Emirates and the Islamic Republic of Iran.
|
(b)
|
If STRD has not entered into a Distribution Agreement covering the commercialization of the Product in Turkey on or before [*****], then from and after such date: (i) STRD's rights under Section 3.1 with respect to the Product in Turkey will revert back to Dyax; and (ii) Dyax shall pay to STRD a monthly contribution payment equal to twelve and one-half percent (12.5%) of any amounts received by Dyax as a result of sales of Product in Turkey. Such payment shall be made to STRD within [*****] following the completion of each calendar quarter during the Term of this Agreement. For the purposes of this provision, the term "Distribution Agreement" shall mean a binding agreement with a reputable business entity engaged in the distribution of pharmaceutical products in the applicable region which has been executed in compliance with Section 3.1(d) of the Amended Agreement.
|
8.
|
Except as expressly provided otherwise in this Fourth Amendment, all provisions of the Amended Agreement remain in full force and effect without modification and all such terms are hereby ratified and confirmed.
|
9.
|
From and after the Fourth Amendment Date, the term "Agreement" as used in the Original Agreement shall mean the Original Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment and this Fourth Amendment.
|
10.
|
This Fourth Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
|
DYAX CORP.
|
|||
By:
|
/s/ Ivana Magovcevic-Liebisch
|
||
Name:
|
Ivana Magovcevic-Liebisch | ||
Title:
|
Executive Vice President and | ||
Chief Business Officer
|
|||
SIGMA TAU RARE DISEASES S.A.
|
|||
By:
|
/s/ Pedro Quintas
|
||
Name:
|
Pedro Quintas
|
||
Title:
|
Director
|
||
SIGMA TAU RARE DISEASES S.A.
|
|||
By:
|
/s/ Jose P. Vieira
|
||
Name:
|
Jose P. Vieira
|
||
Title:
|
Director
|
1.
|
Exhibit A to the Amended Agreement is hereby deleted in its entirety and replaced by Exhibit A attached to this Fifth Amendment. For the avoidance of doubt, the remaining countries of Latin America have been removed from the STRD Territory and all rights to Develop and Commercialize Product in such countries has been returned to Dyax. STRD shall, within [*****] after the Fifth Amendment Date, transfer to Dyax all records and materials available to STRD and relating to STRD's Product-related activities in such countries, including regulatory correspondence and filings, and copies of any third party agreements, if any (it being understood that Dyax will have no obligations under any such agreements).
|
2.
|
Section 1.32 of the Amended Agreement is hereby deleted in its entirety and replaced by the following, in lieu thereof:
|
|
(a)
|
the countries listed under the heading "Original STRD Territory" on Exhibit A, together with (i) any additional countries that join the EU after the Effective Date, and (ii) any new countries or territories created or arising after the Effective Date that reside within the geographical boundaries of such countries (the "Original STRD Territory"); and
|
|
(b)
|
the countries listed under the heading " Additional STRD Territory" on Exhibit A, together with any new countries or territories created or arising after the Effective Date that reside within the geographical boundaries of such countries (the " Additional STRD Territory").
|
3.
|
Section 4.2 (a) of the Amended Agreement is hereby deleted in its entirety and replaced by the following, in lieu thereof:
|
|
4.2
|
HAE Indication.
|
|
(a)
|
HAE Development Plan. As soon as possible after the Fifth Amendment Date, STRD and Dyax shall jointly complete, and the JSC shall approve by [*****], a formal document that will detail STRD's [*****] Efforts to Commercialize Product in the Field in the STRD Territory (the "HAE Development Plan") in accordance with its obligations under Section 5.1 and, as to Europe, in accordance with the provisions of Section 6.7 hereof. The HAE Development Plan shall include all activities that are necessary to obtain Regulatory Approval of the Product in the Field in the Additional STRD Territory; strategies and timelines for completing such activities, together with the annual budget for expenses related thereto. The HAE Development Plan shall also allocate responsibility between the Parties for such activities, subject to Section 4.2(c), (d) and (e) below and each Party's financial obligations under Section 7.3.
|
(i)
|
each Party shall review the HAE Development Plan not less frequently than quarterly and shall develop detailed and specific updates to the HAE Development Plan, until the completion of the activities covered thereunder;
|
(ii)
|
each Party shall submit all such updates to the JSC for review and approval at each meeting of the JSC; and
|
(iii)
|
the JSC shall review proposed updates to the HAE Development Plan at the next scheduled meeting of the JSC, or earlier if the JSC so agrees, and may approve such proposed updates in its discretion and, upon such approval by the JSC, the HAE Development Plan shall be amended accordingly.
|
4.
|
Section 7.14 of the Amended Agreement is hereby amended to insert the following subsection (c) at the end of such section:
|
|
(c)
|
Within [*****] following the completion of each calendar quarter during the Term of this Agreement, Dyax shall pay to STRD a quarterly contribution payment equal to five percent (5.0%) of any amounts received by Dyax during the prior quarter as a result of sales of Product in the following countries of Latin America and the Caribbean: Anguilla, Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bermuda, Bolivia, British Virgin Islands, Cayman Islands, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Montserrat, Netherlands Antilles, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Turks and Caicos Islands, Uruguay, Venezuela.
|
5.
|
Except as expressly provided otherwise in this Fifth Amendment, all provisions of the Amended Agreement remain in full force and effect without modification and all such terms are hereby ratified and confirmed.
|
6.
|
From and after the Fifth Amendment Date, the term "Agreement" as used in the Original Agreement shall mean the Original Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and this Fifth Amendment.
|
7.
|
This Fifth Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
|
DYAX CORP.
|
|||
By:
|
/s/ Ivana Magovcevic-Liebisch
|
||
Name:
|
Ivana Magovcevic-Liebisch | ||
Title:
|
Executive Vice President and | ||
Chief Business Officer
|
|||
SIGMA TAU RARE DISEASES S.A.
|
|||
By:
|
/s/ Pedro Quintas
|
||
Name:
|
Pedro Quintas
|
||
Title:
|
Director
|
||
SIGMA TAU RARE DISEASES S.A.
|
|||
By:
|
/s/ Jose P. Vieira
|
||
Name:
|
Jose P. Vieira
|
||
Title:
|
Director
|
(1)
|
FUJIFILM DIOSYNTH BIOTECHNOLOGIES UK LIMITED of Belasis Avenue, Billingham, TS23 1LH, England ("Fujifilm"); and
|
(2)
|
DYAX CORP., having offices at 55 Network Drive, Burlington, MA 01803 ("Dyax").
|
A
|
Dyax has a requirement for Bulk Drug Substance (as defined below).
|
B
|
The parties wish to enter into this Agreement to provide for the supply of Bulk Drug Substance by Fujifilm to Dyax upon and subject to the terms and conditions contained in this Agreement.
|
Affiliate
|
Any corporation, association or other business entity which directly or indirectly controls, is controlled by or is under common control with Fujifilm or Dyax and "control" shall mean the legal power to direct or cause the direction of the general management and policies of such entity whether through the ownership of at least 50% of voting securities or capital stock of such business entity or any other comparable equity or ownership interest with respect to a business entity other than a corporation.
|
Background
Intellectual Property
|
Any Intellectual Property owned by or in the possession of a party (and to which that party has the necessary rights):
|
|
(a) | at the date of this Agreement; or | |
(b) | thereafter either (i) acquired independently of this Agreement or (ii) developed independently of this Agreement by any employee of that party without reference to any of the Confidential Information disclosed by the other party;
|
|
in each case, to the extent necessary to manufacture Bulk Drug Substance in accordance with this Agreement. |
Batch
|
A quantity of Bulk Drug Substance produced using the Process that (a) is expected to have uniform character and quality within specified limits, and (b) is produced according to a single manufacturing run during the same cycle of the Process.
|
Batch Fee
|
The price for a Batch set out in Clause 4.1 as may be adjusted from to time under Clause 4.2.
|
Bulk Drug
Substance or BDS
|
Ecallantide bulk drug substance.
|
Bulk Drug
Substance Specification
|
The specification for Bulk Drug Substance set out in the QC Document (as defined in the Quality Agreement).
|
Business Day
|
A day on which the financial markets in the United Kingdom and Massachusetts, USA are open for trading, as applicable.
|
Campaign
|
Manufacture of a series of Batches operated in succession for production of Bulk Drug Substance, including in each case, set-up of the Facility, inter-Batch cleaning and a final clean out of the Facility.
|
Certificate of
Analysis or C of A
|
A document generated for each Batch setting out the results of the analyses listed in the Bulk Drug Substance Specification that is prepared by Fujifilm's quality control department, then approved and issued by Fujifilm's quality assurance department.
The form of the Certificate of Analysis shall be approved in advance by the parties.
|
cGMP
|
Current Good Manufacturing Practice as defined in the Rules and Guidance for Pharmaceutical Manufacturers and Distributors 2007 part II: Basic Requirements for Active Substances used as Starting Materials, and ICHQ7 – as incorporated in the Federal Register volume 66 No 186 (ICHQ7).
|
Commencement Date
|
The date of execution of this Agreement.
|
Commercially
Reasonable Efforts
|
With respect to the activities under this Agreement, the efforts and resources used by a reputable biopharmaceutical contract manufacturing organisation for drug substances of similar nature, complexity and developmental stage.
|
Confidential
Information
|
Any technical and commercial information and any other information of a confidential nature disclosed (whether disclosed in writing, verbally, by way of sample or by any other means and whether directly or indirectly) by either party ("the Disclosing Party") to the other ("the Receiving Party"), including and without limitation any information relating to the Disclosing Party's business affairs. New Intellectual Property shall be deemed to be Confidential Information disclosed by Dyax.
|
Conforming Batch
|
A Batch which both Dyax's and Fujifilm's quality assurance groups have determined to have met the requirements as set out below;
|
|
(i) |
has been produced in accordance with cGMP;
|
|
(ii) |
meets the Bulk Drug Substance Specification;
|
|
(iii) |
adheres to all applicable laws; and
|
|
|
(iv) | which has been produced in accordance with the Process Specification. |
Disposition
|
The process by which, in respect of each Batch, the quality assurance groups of both Fujifilm and Dyax review all documentation related to cGMP manufacture of such Batch, according to the responsibilities agreed in the Quality Agreement, in order to determine if the Batch is deemed a Conforming or Non-Conforming Batch.
|
Disposition Package
|
The compilation of documentation required for quality assurance to make a Disposition decision. It will include, but is not limited to; Executed Batch Manufacturing Records and associated deviation reports, investigation reports and Certificate of Analysis resulting from the cGMP manufacture and Disposition of each Batch.
|
Drug Product
|
Dyax's proprietary plasma Kallikrein inhibitor known as Ecallantide that is isolated from Pichia pastoris fermentation in final finished form.
|
Executed Batch
Manufacturing
Record or Executed BMR
|
The completed batch record production instructions.
|
Facility
|
Fujifilm's ABC5000 facility situated at Belasis Avenue, Billingham, Cleveland, United Kingdom.
|
Force Majeure
|
Any cause beyond the reasonable control of the party in question which for the avoidance of doubt and without prejudice to the generality of the foregoing shall include governmental actions, war, riots, terrorism, civil commotion, fire, flood, epidemic, labour disputes (excluding labour disputes involving the work force or any part thereof of the party in question), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions and illness of key staff but shall not include failure of the Drug Product to gain regulatory approval or suspension or withdrawal of Drug Product license by a Regulatory Authority.
|
Fujifilm Factor
|
Failure by Fujifilm to carry out a Campaign in accordance with cGMP, the Bulk Drug Substance Specification, the Process Specification, Master Batch Record, Issued Batch Manufacturing Records and/or supporting standard operating procedures for any reason other than Force Majeure.
|
Intellectual Property
|
All know-how, inventions, discoveries, devices, data, patents, designs, copyrights, or other industrial or intellectual property and all applications therefor.
|
Issued Batch
Manufacturing
Record or Issued BMR
|
The batch record instruction issued from the master for completion in production.
|
Master Batch Record
|
The document which sets out in detail the master production instructions as defined in sections 6.4 and 6.5 of the Rules and Guidance for Pharmaceutical Manufacturers and Distributors Part II: Basic Requirements for Active Substances Used as Starting Materials.
|
New Intellectual Property
|
Intellectual Property arising during and as a direct result of Fujifilm carrying out manufacture under this Agreement.
|
Non-Conforming Batch
|
A Batch which; after review of the Disposition Package, is deemed by both Dyax’s and Fujifilm’s quality assurance groups to not meet the requirements of a Conforming Batch.
|
Process
|
The process for the manufacture of Bulk Drug Substance in accordance with cGMP as defined in the approved; Process Specification, Issued Batch Manufacturing Records, SOPs, analytical procedures.
|
Process Specification
|
The document which defines the Process, including any critical processing parameters, as validated previously by Fujifilm or as subsequently agreed by Dyax and Fujifilm in writing.
|
Process-Specific Consumable
|
A Consumable which is required to operate the Process and which is specific to the Process or a Consumable which is required in such large volumes as would not be possible for Fujifilm to consume during other manufactures within the shelf life of the Consumable.
|
Process-Specific Equipment
|
An item of equipment (including the cost of installation and qualification thereof) which is required to operate the Process and which is specific to the Process.
|
Quality Agreement
|
The document agreed between the parties setting out:
|
|
(i) |
the mutually agreed quality standards applicable for the manufacture of the Bulk Drug Substance in accordance with cGMP; and
|
|
(ii) |
the roles and responsibilities of each party's personnel in relation to quality assurance matters.
|
Regulatory
Authority(ies)
|
The U.S. Food and Drug Administration ("FDA"), the European Medicines Agency ("EMA"), or any equivalent governmental regulatory body which the parties agree in writing, or any successor entity thereto.
|
Special Wastes
|
Waste or effluent which is required to be collected in a special container for external disposal.
|
Strain
|
DY102, the Pichia pastoris ecallantide production strain which has been licensed by Research Corporation Technologies, Inc. to Dyax as part of the expression system and transferred by Dyax to Fujifilm for the sole purpose of performing its obligations to Dyax hereunder.
|
Subcontracted Work
|
Work subcontracted by Fujifilm under Clause 12.3 and the cost of delivery of material to and from such contractors.
|
Third Party
|
Any person other than the parties or their respective Affiliates.
|
Year
|
A period of twelve (12) months from 1st January to 31st December.
|
1.2.
|
Interpretation. References in this Agreement to "Schedules" refer to the Schedules incorporated into this Agreement. To the extent that there is conflict between or ambiguity relating to, on the one hand, any or all of the Schedules and, on the other, the remainder of this Agreement, the wording of the remainder of this Agreement shall prevail, representing the parties' revised position at the date of signature hereof.
|
2.1.
|
Production of Bulk Drug Substance. Dyax may order and purchase from Fujifilm and Fujifilm shall manufacture and deliver to Dyax quantities of Bulk Drug Substance from time to time in accordance with the terms and conditions set out in this Agreement. Bulk Drug Substance will be produced from Batches manufactured by Fujifilm in the Facility under this Agreement.
|
2.2.
|
Ordering Process.
|
(a)
|
On a quarterly basis Dyax will provide Fujifilm a non-binding demand forecast for the next three (3) Years. Within five (5) days of receipt of this forecast Fujifilm will provide Dyax a summary of available manufacturing slots over the forecasted three (3) year period from which Dyax may initiate an order against. This forecast is prepared for information only and it shall not be a requirement that actual orders or manufacturing periods correspond with such forecast.
|
(b)
|
Dyax may once per Calendar Quarter and subject to a maximum of twice in any twelve (12) month period, initiate an order for a Campaign based on the summary of available manufacturing slots provided by Fujifilm as part of the forecasting process described in the previous section. Within twenty (20) days following receipt of such initial order from Dyax, Fujifilm shall confirm the schedule for such Campaign, including manufacturing and delivery dates (subject to Clause 2.2(c) below). This order will be a binding order when within seven (7) days of receipt of Fujifilm's schedule Dyax communicates in writing to Fujifilm that this Campaign schedule is acceptable. Both parties recognize the cost benefits of combining individual Campaigns and agree to do so whenever possible. That notwithstanding, the delivery dates agreed to upon issuance and acceptance of each binding order will be held unless a change is agreed to by both parties. Notwithstanding the foregoing and subject to Clause 2.4 below, Dyax shall not order more than seven (7) Batches in any twelve (12) month period.
|
(c)
|
Where such binding order is for a Campaign (including a Campaign combined from two separate orders pursuant to Clause 2.2(b) above) of three (3) Batches or fewer, Fujifilm shall deliver the ordered number of Batches within eighteen (18) months of the date of Dyax's binding order under Clause 2.2(b). Where such order is for a Campaign (including a Campaign combined from two separate orders pursuant to Clause 2.2(b) above) of more than three (3) Batches, subject to the operation of Clause 2.4, Fujifilm shall deliver the ordered number of Batches within twenty-four (24) months of the date of Dyax's binding order under Clause 2.2(b). Subject to the foregoing, the exact time of manufacture will be at Fujifilm's discretion and depending on availability of manufacturing slots in the Facility.
|
(d)
|
Dyax may increase the number of Batches in the Campaign by up to one (1) additional Batch with a minimum of six (6) months' notice prior to the manufacturing timelines provided as part of the binding order process. This will become a binding order when communicated in writing to Fujifilm. OK
|
(e)
|
The commitment on the part of Fujifilm under Clause 2.2(b) above shall subsist until end of Year 2018 (so that, for the avoidance of doubt, Fujifilm is not obliged to manufacture beyond the end of Year 2020). The commitment will lapse at the end of Year 2018 unless the parties agree in writing to continue it beyond that date.
|
2.3.
|
Intentionally Omitted.
|
2.4.
|
Additional quantities. At Fujifilm's sole discretion, Fujifilm may accept a request from Dyax to accommodate a Campaign or Campaigns aggregating more than seven (7) Batches in any twelve (12) month period provided that such request shall be made by Dyax at the time of Dyax's binding order for such Campaign under Clause 2.2(a). If Fujifilm accepts such request, the Campaign shall consist of the number of Batches agreed to by Fujifilm in Fujifilm's sole discretion.
|
2.5.
|
Delivery and Export. Delivery of each Batch will be made Ex Works (EXW) (Incoterms 2010) at the Facility for acceptance by Dyax or its agent. Notwithstanding the foregoing, Fujifilm shall be responsible for packaging Bulk Drug Substance for delivery in accordance with the Issued BMR applicable to packaging. Risk and title in respect of all each Batch shall pass five (5) days following acceptance under Clause 3.4 below. Dyax agrees that it shall export Batches sold to it promptly and in any case within three (3) months of the date of invoice and shall provide evidence of such export within three (3) months thereof.
|
2.6.
|
Key Manufacturing Assumptions. Manufacture of Bulk Drug Substance is subject to the following assumptions. If these assumptions are not current or accurate the cost and timelines may change.
|
(a)
|
The existing validated Process and analytical methods will be used to manufacture Bulk Drug Substance, with no changes following the 2012 Campaign.
|
(b)
|
There will be no changes to the cGMP documentation following the 2012 Campaign.
|
(c)
|
There will be no changes to the Bulk Drug Substance Specification documented at the date hereof in Dyax's Biologic License Application or Marketing Authorisation Application.
|
(d)
|
Support of any requested changes or improvements will be subject to agreement of additional scope of work and cost.
|
(e)
|
Bulk Drug Substance stability programmes (if required) will be managed through separate contracts. The impact of any changes to analyses during stability programmes on regulatory submissions will need to be assessed and may result in additional work at additional cost.
|
(f)
|
The core regulatory and/or technical support associated with maintaining the cGMP state of the facility, maintaining quality systems to insure cGMP compliance, completing any investigations resulting from manufacturing and quality activities, and completing, submitting and responding to a filing to a Regulatory Authority associated with the aforementioned activities shall be at Fujifilm's cost.
|
|
Work beyond this scope can be provided by Fujifilm as required, subject to agreement of additional scope of work and cost, provided that maintaining regulatory compliance of the Facility and technical assistance in investigating deviations, annual Bulk Drug Substance reviews, batch data trending, etc. shall not be subject to additional charges and provided further that where Dyax has ordered three (3) Batches or fewer in a Calendar Year, annual review and maintenance of the product licence, annual Bulk Drug Substance reviews and batch data trending by Fujifilm's regulatory team will be charged at £5,000 per person per week and where Dyax has ordered more than three (3) Batches in a Calendar Year, annual review and maintenance of the product licence by Fujifilm's regulatory team will be free of charge. For the avoidance of doubt, the core efforts described above shall not be limited to the calendar year in which the manufacturing process was performed. These activities will be performed as necessary to complete all quality, regulatory, and technical efforts (investigations, CAPA etc.) previously initiated or subsequently required by the performance of manufacturing in a prior calendar year.
|
(g)
|
Fujifilm shall be permitted to overlap Batches to the extent technically feasible with the intention of reducing manufacturing cycle-time without requiring the prior agreement of Dyax so long as this change does not; (i) have an impact on the status of any equipment or process validation, (ii) increase the likelihood of Batch failure, or (iii) conflict with any description or definition of how the Process is performed in any submitted Regulatory submissions. Otherwise Dyax's written approval is required before implementation of any such change.
|
2.7.
|
Capacity Expansion Planning. Either party may at any time initiate a discussion of planning for increased production capacity.
|
2.8.
|
Management.
|
(a)
|
Fujifilm and Dyax will each appoint a Programme Manager as its principal point of contact.
|
(b)
|
Fujifilm shall respond in a timely manner to all Dyax inquiries regarding the status of manufacturing activities under this Agreement, and shall use Commercially Reasonable Efforts to respond to most inquiries within three (3) Business Days.
|
(c)
|
In the event that the Programme Managers are unable to reach a decision on any matter, the issue shall be referred initially to the Director of Programmes, Fujifilm and the Director of Manufacturing, Dyax (or their operational equivalents / successors). If such persons are unable to resolve the matter, it shall be referred to the Managing Director, Fujifilm and the President and Chief Executive Officer of Dyax.
|
2.9.
|
Research and Development Work. Research and development work, if any, will require a separate agreement albeit on substantially similar terms to the process development and validation agreement agreed between the parties and dated 15th March 2006.
|
2.10.
|
Compliance with Law. All manufacturing activities conducted by Fujifilm hereunder shall be completed in accordance with all applicable laws and regulations.
|
3.1.
|
Quality Assurance and Quality Control. Each party shall fulfill its responsibilities as set out in the Quality Agreement. Subject always to the provisions of the Quality Agreement, Fujifilm will not make any modification to the Process Specification (as validated), raw materials, components, or testing without the written consent of Dyax.
|
3.2.
|
New Products in the Facility. Fujifilm recognises that the addition of new products into its multi-product facilities could have an impact on the regulatory status of Drug Product. During the period whilst there is a supply agreement in place between Dyax and Fujifilm for the commercial supply of Bulk Drug Substance, Fujifilm will assess all new product entries prior to manufacture for impact on the regulatory status of the Bulk Drug Substance. Fujifilm will update its Drug Master File with details of each new product introduction into either the GMP manufacturing suites and/or equipment shared with Bulk Drug Substance fermentation and downstream purification steps. Fujifilm will notify Dyax in writing of these and provide sufficient summary information to allow Dyax to complete the relevant submissions to the FDA. Should it be deemed necessary, Third Party confidential information will be disclosed directly to the FDA via the Drug Master File. Where the Fujifilm regulatory assessment deems that a Prior Approval Supplement to the Dyax Biologics License Application may be required as a result of a planned new product introduction, Fujifilm will notify Dyax in writing at the earliest opportunity in order to allow consideration of the regulatory strategy and timelines. Dyax will use Commercially Reasonable Efforts to submit a Prior Approval Supplement to the FDA within ten (10) Business Days of receiving notification of such a new product. Should the FDA require further explanation or information to support their decision this will be provided by Fujifilm.
|
3.3.
|
Changes Mandated by Regulatory Authority.
|
(a)
|
Drug Substance-Specific Changes: If facility, equipment, process or system changes are required of Fujifilm as a result of a change in the regulatory requirements of a Regulatory Authority, and such regulatory changes apply solely and specifically to the production and supply of Drug Substance, then Dyax and Fujifilm will review such requirements and agree in writing to such regulatory changes, and Dyax shall bear 100% of the reasonable costs thereof. If such changes are initiated by the introduction of another product in the facility, than these costs shall be the sole responsibility of Fujifilm.
|
(b)
|
General Changes: If such regulatory changes apply generally to Drug Substance as well as to other products produced by Fujifilm for itself or for third parties, then Fujifilm shall bear the cost of those changes.
|
3.4.
|
Disposition and Disposition Package Review. Fujifilm shall carry out Disposition of each Batch manufactured during a Campaign. On completion of Disposition of each Batch, and no later than thirty (30) Business Days following the performance of the final filtration and filling step, Fujifilm shall provide the Disposition Package for such Batch to Dyax for review. Within ten (10) Business Days following delivery of the complete Disposition Package to Dyax, Dyax shall confirm in writing whether Dyax accepts Fujifilm's findings detailed in the Disposition Package, or shall submit a complaint in accordance with the Quality Agreement in the form annexed thereto. Dyax shall be taken to have accepted such Batch on the earlier of actual notification by Dyax of its acceptance of Fujifilm's findings in the Disposition Package or in the absence of notice of rejection of such findings or the Batch within ten (10) Business Days from such delivery of the Disposition Package. Should Dyax identify an error or omission, Fujifilm shall have ten (10) Business Days to correct same, after which the ten (10) Business Day period for Dyax to review shall restart.
|
3.5.
|
Non-Conforming Batch. The following provisions shall apply in the event that (i) during Disposition of a Batch, it is ascertained that such Batch is a Non-Conforming Batch or (ii) Dyax submits a complaint under the Quality Agreement in respect of a Batch within the period(s) set out in Clause 3.4 above and Fujifilm accepts that such Batch is a Non-Conforming Batch or (iii) an independent expert appointed under the Quality Agreement determines that a Batch is a Non-Conforming Batch:
|
(a)
|
The Non-Conforming Batch shall not be delivered to Dyax, unless Dyax requests it. If Dyax requests delivery of the Non-Conforming Batch, Fujifilm shall deliver such Non-Conforming Batch in accordance with Clause 2.5.
|
(b)
|
If Dyax does not wish to take delivery of the Non-Conforming Batch, Fujifilm shall manufacture a further Batch as soon as reasonably practicable but in any case no later than six (6) months after Dyax's notice that it does not wish to take delivery of the Non-Conforming Batch.
|
(c)
|
If the Non-Conforming Batch arose other than as a result of a Fujifilm Factor, Dyax shall be obliged to make all payments associated with the manufacture and Disposition of such Batch.
|
(d)
|
The following provisions shall apply if the Non-Conforming Batch arose as a result of a Fujifilm Factor:
|
(i)
|
If Dyax wishes to take delivery of the Non-Conforming Batch under Clause 3.5(a), the parties shall agree in writing a reduction in the consideration payable in respect of such Batch; or
|
(ii)
|
If Dyax does not wish to take delivery of the Non-Conforming Batch under Clause 3.5(a), manufacture of a further Batch under Clause 3.5(b) shall be undertaken at Fujifilm's cost and expense and as soon as reasonably practicable but in any case no later than six (6) months after Dyax's notice that it does not wish to take delivery of the Non-Conforming Batch.
|
(e)
|
Subsequent to Disposition as a Conforming Batch in the event that Dyax claims that any Batch was a Non-Conforming Batch, subsequent to Disposition and such non-conformance could not have been reasonably discovered by Dyax during the Disposition period described in Clause 3.4, then Dyax shall notify Fujifilm in writing promptly after discovery of such latent defect and the parties shall meet to discuss such matter. If the parties are unable to agree, after consultation with senior management of both parties, then the matter shall be referred to an independent expert in accordance with Appendix 2 of the Quality Agreement.
|
3.6.
|
Document Review. The parties acknowledge and accept that each of them has a key role to play to enable any target dates for a Campaign and subsequent Disposition to be met, and consequently shall take such actions as are reasonably necessary in order to achieve the milestones by such dates, including, without limitation, responding promptly, in good faith, and in accordance with a mutually agreed document review schedule to any query raised or document or report issued by the other Party. Only two review cycles per document or report shall be undertaken and, at each review, each Party shall provide to the other a single set of comments collated by the individual responsible for approving or signing such document or report. The foregoing limitation to two review cycles is premised on the assumption that Fujifilm will have appropriately addressed comments previously submitted by Dyax during such reviews. Should comments not be adequately addressed Dyax shall notify Fujifilm and the review cycle shall be repeated. The parties shall mutually agree a document review schedule setting out the schedule for review and approval of all documents and the schedule must be in place prior to the start of document review process. The documents which are intended to be the subject of the document review schedule will be listed in the Quality Agreement.
|
3.7.
|
Regulatory Assistance. Dyax shall have the right and responsibility for determining regulatory strategy, decisions and actions relating to the Bulk Drug Substance and Drug Product, provided that Fujifilm shall have the right and responsibility for determining regulatory strategy, decisions and actions to the extent relating to (i) the Facility; (ii) Fujifilm's quality systems; (iii) any requirement imposed on Fujifilm by a Regulatory Authority or (iv) any other commitments made by Fujifilm to other customers (each an "Fujifilm Regulatory Responsibility"). Dyax shall therefore consult with Fujifilm in relation to the Chemistry, Manufacturing and Controls (CMC) section of any submissions to Regulatory Authorities before submission to such Regulatory Authorities and Dyax shall not make any change to its regulatory filings, which may have an impact on any Fujifilm Regulatory Responsibility without prior agreement with Fujifilm.
|
4.1.
|
Batch Price. In consideration for sale and delivery of each Batch produced for export from the United Kingdom, Dyax shall pay to Fujifilm the price set out in the table below. The price for each Batch shall depend on the number of Batches ordered for such Campaign:
|
Number of
Batches
In Campaign
|
Batch Price
|
Total Campaign
Price
|
|
1
|
[*****]
|
[*****]
|
|
2
|
[*****]
|
[*****]
|
|
3
|
[*****]
|
[*****]
|
|
4
|
[*****]
|
[*****]
|
|
5
|
[*****]
|
[*****]
|
|
6
|
[*****]
|
[*****]
|
|
7
|
[*****]
|
[*****]
|
|
8
|
[*****]
|
[*****]
|
|
9
|
[*****]
|
[*****]
|
|
10 or more
|
[*****]
|
[*****]
|
|
*based on 10 batches |
Stage
Payment
|
% of Batch
Price
|
Payment trigger
|
1
|
30
|
Six (6) calendar months prior to inoculation of the first Batch in the scheduled manufacturing Campaign.
|
2
|
25
|
Inoculation of the fermenter for such manufacture
|
Final
|
45
|
Completion of Disposition of the applicable Batch
|
4.2.
|
Price Review.
|
(a)
|
For the purpose of this Clause 4.2, the following terms shall have the following meanings:
|
Commodities Index
|
The price indices of commodities imported into the United Kingdom detailed in the Producer Price Indices published by the United Kingdom Office for National Statistics.
|
Index Figure
|
The aggregate of (i) the monthly figure given by the Labour Costs Index multiplied by 0.9 and (ii) the monthly figure given by the Commodities Index multiplied by 0.1.
|
Labour Costs Index
|
The Labour Costs Index published by the United Kingdom Office for National Statistics measuring changes in the average labour costs per hour worked, including wages and salaries as well as employer social contributions, maternity, paternity and sick pay and benefits in kind.
|
Review Date
|
The anniversary of the date of execution of this Agreement.
|
(b)
|
The price shall be reviewed on the anniversary of the Commencement Date and each Year thereafter on the Review Date and if upon such review the Index Figure last published before the Review Date shows an increase in relation to the Index Figure last published before execution of this Agreement (in the case of the first Review Date) or, thereafter, before the previous Review Date in aggregate greater than 2% then the Batch Price shall be increased by the proportion exceeding 2% (e.g. a 6% increase in the Index Figure would result in a 4% price increase.
|
(c)
|
It is recognised that, at the date hereof, Batch timing and therefore Batch price is understood by both parties. There is a consequent assumption that Fujifilm systems (including, without limitation, Facility clean in and clean out times) will become more efficient over time and savings from such efficiencies are already reflected in the Batch price set out in Clause 4.1 above. Notwithstanding the foregoing, the following principles shall be applied in relation to Batch pricing:
|
(i)
|
If Dyax purchases process-specific or portable equipment which results in a reduction in processing time, then Dyax shall be entitled to a discounted Batch price based on prorated per day reduction in process time.
|
(ii)
|
If Fujifilm purchases hardware or changes systems which result in a reduction in processing time, then Fujifilm shall not be obliged to pass on the consequent benefit to Dyax in the form of a reduction in the Batch price or otherwise.
|
4.3.
|
Excluded Items. The sums set out in Clause 4.1 above do not include:
|
(a)
|
Consumables; or
|
(b)
|
Subcontracted Work; or
|
(c)
|
Process-Specific Equipment; or
|
(d)
|
Special Wastes.
|
4.4.
|
Additional Charges in Respect of Consumables. Six (6) calendar months prior to the scheduled date for commencement of a Campaign, Fujifilm shall provide an approved bill of materials that summarizes the specific types and quantities of Consumables to be purchased for use during such Campaign, plus an estimate of the costs to purchase those specific quantities ("the Estimate"). Fujifilm shall bear such expenditure itself. Fujifilm shall issue invoices for technical consultancy services provided in respect of such Consumables as follows:
|
(a)
|
Fujifilm shall issue an invoice in an amount equivalent to 100% of the estimated expenditure, when Fujifilm has generated the relevant Estimate.
|
(b)
|
On completion of each Campaign, or earlier termination of this Agreement, Fujifilm shall reconcile the actual purchase costs for the quantities in the approved bill of materials to "the Estimate" and shall add a sum equivalent to [*****] of the expenditure on all Consumables, the aggregate amounts in each case being referred to as "Actual Expenditure". If the Actual Expenditure is greater than the Estimate, Fujifilm shall issue a further invoice for technical consultancy in relation to such Consumables for a sum equivalent to the difference. If the Actual Expenditure is less than the corresponding Estimate, Fujifilm shall issue a credit note against the earlier invoice for a sum equivalent to the difference.
|
4.5.
|
Additional Charges in Respect of Subcontracted Work, Process-Specific Equipment or Special Wastes. Both parties acknowledge that the manufacture of the Bulk Drug Substance has been performed numerous times to date and the scope and costs for these items are already captured in the pricing structure defined in this agreement. The following clause shall only apply to an agreed change in scope from the current approved Process or agreed change in applicable law. Should a change be requested or agreed to be required, Fujifilm shall obtain Dyax's approval in writing prior to incurring expenditure on Subcontracted Work, Process-Specific Equipment or Special Wastes. Fujifilm shall bear such expenditure itself. Fujifilm shall invoice Dyax for further technical consultancy services provided by Fujifilm in respect of the Subcontracted Work, Process-Specific Equipment or Special Wastes as the case may be in the same amount as the expenditure which Fujifilm incurs in respect of Subcontracted Work, Process-Specific Equipment or Special Wastes, plus a sum equivalent to [*****] of such expenditure. Fujifilm shall issue invoices for such technical consultancy services at the time Fujifilm incurs expenditure in respect of the Subcontracted Work, Process-Specific Equipment or Special Wastes, as the case may be.
|
4.6.
|
Purchase of Process-Specific Consumables and Process-Specific Equipment. Dyax shall have an option, exercisable within one (1) month of termination of this Agreement (unless such termination is by Fujifilm under Clauses 8.2(d) or 8.2(e)), to purchase from Fujifilm such Process-Specific Equipment and/or Process-Specific Consumables purchased by Fujifilm under Clauses 4.4 and 4.5 as remain at the time of termination for consideration of £1 payable at the time of such sale. Dyax shall be responsible for any cost and expense associated with removal of such Process-Specific Equipment and/or Process-Specific Consumables and documenting such sale and such Process-Specific Equipment and/or Process-Specific Consumables shall be delivered Ex Works Fujifilm's facility. Risk in and title thereto shall pass on delivery. Fujifilm shall be free to use any item(s) of Process-Specific Equipment or Process Specific Consumables in respect of which the option referred to in this Clause 4.6 is not exercised.
|
4.7.
|
Issue of Invoices. Fujifilm shall issue invoices for the sums set out in Clauses 4.1, 4.4, 4.5 and 4.6 as such sums fall due and Dyax shall pay such sums within thirty (30) days of the date of the relevant invoice. Interest shall become due on late payments at a rate of 1.5% per month (compounded monthly) until the date of payment. In addition to all other remedies available to Fujifilm in the event of a Dyax default, if Dyax fails to make payments as required hereunder, Fujifilm may suspend manufacture and/or delivery of Bulk Drug Substance until such payments are made in full.
|
4.8.
|
Bank Account Details. All amounts payable to Fujifilm under this Agreement shall be paid in Pounds Sterling, without deduction, by authenticated and value dated Swift telegraphic transfer, quoting invoice numbers of payment, to:
|
|
[*****]
|
4.9.
|
Taxes. Any payment under this Agreement is exclusive of any Value Added Tax (or other tax) that may apply and shall be paid gross, without deductions or set-offs, whether by way of withholding or other income taxes, and Dyax shall ensure that such sum is paid to Fujifilm as shall, after deduction of such withholding or other income taxes, be equivalent to the consideration payable under this Agreement.
|
5.1.
|
Background Intellectual Property. Nothing in this Agreement shall affect the ownership by either party of any Intellectual Property owned by or in the possession of that party at the date of this Agreement or Intellectual Property developed independently of this Agreement by any employee of that party without reference to any of the Confidential Information disclosed by the other party.
|
5.2.
|
Non-exclusive license under Background Intellectual Property. Each party hereby grants to the other party a non-exclusive license to use that party's Background Intellectual Property whilst this Agreement remains in force and for the purposes of this Agreement. Such license shall be royalty free, except in the case of Intellectual Property that has been in-licensed by a party and is subject to certain financial terms. In such cases, the parties shall mutually agree on applicable terms before including such in-licensed Intellectual Property in the Background Intellectual Property licensed under this Clause 5.2.
|
5.3.
|
New Intellectual Property. Any New Intellectual Property shall belong to Dyax. Fujifilm shall, and shall ensure that its employees shall, at Dyax's expense, perform all acts and execute all instruments necessary to vest in Dyax all rights, title and interest in the registrations together with all patents and patent applications or otherwise for such New Intellectual Property. All fees, costs and expenses connected with the filing, prosecution and maintenance of a patent or other protection shall be borne and paid by Dyax.
|
5.4.
|
Non-exclusive license under New Intellectual Property. Save for the Strain, Dyax hereby grants to Fujifilm a royalty-free, irrevocable, non-exclusive, world-wide license, with power to sub-license, under the New Intellectual Property for any use other than for production of the Bulk Drug Substance or the Drug Product or with any recombinant protein that inhibits the activity of plasma kallikrein. Nothing contained in Clause 7 shall prevent Fujifilm from exercising the rights granted under this Clause 5.4. Dyax also grants to Fujifilm a royalty-free license under the New Intellectual Property for production of the Bulk Drug Substance by Fujifilm on behalf of Dyax under the terms of this Agreement.
|
6.1.
|
General. Each party warrants to the other that:
|
(a)
|
it has the necessary right and authority to enter into this Agreement and that to the best of its knowledge at the date of this Agreement it is the rightful owner or licensee of the Intellectual Property used hereunder; and
|
(b)
|
to the best of its knowledge at the date of this Agreement, Fujifilm's use of Background Intellectual Property pursuant to this Agreement for the purposes set out in this Agreement will not infringe the Intellectual Property of a third party.
|
6.2.
|
Insurance. Each party shall secure and maintain in full force and effect during the term of this Agreement policies of insurance providing coverage for (a) Employer's Liability and (b) Public and Products Liability having policy limits, deductibles and other terms appropriate to the conduct of that party's business. Evidence of such insurance in the form of a broker's letter will be made available for examination upon request of the other party.
|
6.3.
|
Intellectual Property Indemnity. Each party ("the First Party") shall be liable for and indemnify the other ("the Second Party") against any liability, loss, claim, damage, proceedings and costs whatsoever arising out of any actual or suspected infringement of any third party Intellectual Property, including the requirement to pay a license fee to such third party for use of such third party Intellectual Property during the work under this Agreement (an "IP Infringement") as a result of the Second Party's use in its performance of the work under this Agreement of the Background Intellectual Property provided by the First Party, provided that the Second Party:
|
(a)
|
gives notice to the First Party of any IP Infringement forthwith on becoming aware of the same and ceases to use the Background Intellectual Property which is the subject of the IP Infringement;
|
(b)
|
gives the First Party the sole conduct of the defence to any claim or action in respect of the IP Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the First Party; and
|
(c)
|
acts in accordance with the reasonable instructions of the First Party and gives the First Party such assistance as it shall reasonably require in respect of the conduct of such defence.
|
6.4.
|
Cessation of Intellectual Property Indemnity. Notwithstanding the provisions of Clause 6.3 above, the First Party's liability to indemnify the Second Party shall cease in respect of continuing use by the Second Party of the Background Intellectual Property which is the subject of the IP Infringement following either:
|
(a)
|
notification by the First Party to the Second Party that the Background Intellectual Property provided by the First Party is actually or is believed by the First Party to be the subject of an IP Infringement; or
|
(b)
|
the Second Party becoming aware that the Background Intellectual Property provided by the First Party is the subject of an IP Infringement;
|
|
except where the First Party agrees or insists that the Second Party shall continue to use the Intellectual Property of the First Party which is the subject of the IP Infringement.
|
6.5.
|
Liability for use of Bulk Drug Substance and Drug Product. Liability in respect of the use of the Bulk Drug Substance delivered to Dyax and any Drug Product produced therefrom shall rest solely on Dyax and Dyax shall indemnify Fujifilm against any liability, loss, damages, costs, legal costs, professional and other expenses whatsoever incurred or suffered by Fujifilm arising out of or in respect of such use of the Bulk Drug Substance following its delivery to Dyax and any Drug Product produced therefrom; provided however, that the forgoing shall not apply to any liability arising out of Fujifilm's gross negligence or wilful misconduct.
|
6.6.
|
Liability for use of the Process. Liability in respect of use or operation of the Process (or any part of the Process), by or on behalf of Dyax, other than by Fujifilm under the terms of this Agreement and other than as a result of an infringement of third party Intellectual Property due to the incorporation of Fujifilm's Background Intellectual Property for which Fujifilm is obliged to indemnify Dyax under Clause 6.3 above, shall rest solely on Dyax. Dyax shall indemnify Fujifilm against any liability, loss, damages, costs, legal costs, professional and other expenses whatsoever incurred or suffered by Fujifilm arising out of or in respect of use or operation of the Process by or on behalf of Dyax (other than by Fujifilm under this Agreement).
|
6.7.
|
Limitations.
|
(a)
|
Dyax's sole and exclusive remedy in relation to a Non-Conforming Batch shall be limited to those remedies set out in Clause 3.5.
|
(b)
|
Other than:
|
(i)
|
with regard to liability arising out of Clauses 6.1 and 6.3; or
|
(ii)
|
in respect of Fujifilm's gross negligence or wilful misconduct which results in a failure to progress the work under this Agreement in a reasonably timely manner,
|
(c)
|
In respect of Fujifilm's gross negligence or wilful misconduct which results in a failure to progress the work under this Agreement in a reasonably timely manner, Fujifilm's total liability (whether for breach of contract, negligence, breach of statutory duty and/or other tort, or otherwise, including any associated legal costs) in connection with or as a result of the work carried out under this Agreement shall be limited to £10,000,000.
|
(d)
|
For the purposes of this Clause 6, "gross negligence" shall mean the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property (including, without limitation, the Bulk Drug Substance delivered or to be delivered under this Agreement or the Drug Product) of another.
|
(e)
|
Neither party shall be liable to the other for any indirect, consequential or special loss, loss of profits or damage howsoever arising.
|
7.1.
|
General. In consideration of the Disclosing Party disclosing the Confidential Information to the Receiving Party, the Receiving Party hereby undertakes to maintain confidential all such Confidential Information and it will accordingly not directly or indirectly use or disclose any of the Confidential Information in whole or in part save for the purposes envisaged in this Agreement.
|
7.2.
|
Exceptions. The foregoing restrictions on the Receiving Party shall not apply to any Confidential Information which:
|
(a)
|
the Receiving Party can prove was already in its possession and at its free disposal before the disclosure hereunder to it;
|
(b)
|
is hereafter disclosed to, purchased or otherwise legally acquired by the Receiving Party by or from a third party who has not derived it directly or indirectly from the Disclosing Party;
|
(c)
|
is or becomes available to the public whether in printed publications or otherwise through no act or default on the part of the Receiving Party or its agents or employees; or
|
(d)
|
the Receiving Party can prove to the reasonable satisfaction of the Disclosing Party has been developed independently of this Agreement by any employee of the Receiving Party without reference to any of the Confidential Information disclosed by the Disclosing Party.
|
7.3.
|
Reasonable Precautions. In order to secure the obligations set out in this Clause 7 the Receiving Party agrees to exercise reasonable precautions to prevent and restrain the unauthorized disclosure and use of information subject to confidentiality, including restricting access to such information to such of its employees as are bound to keep such information confidential and need to have such access for the purpose of this Agreement.
|
7.4.
|
Fujifilm Affiliates. Fujifilm may disclose Confidential Information to or receive Confidential Information through employees of its Affiliates in order to achieve the objectives of this Agreement. Any breaches of the obligations of confidentiality contained in this Agreement by employees of such Affiliates shall be treated as a breach of such obligations by Fujifilm.
|
7.5.
|
Disclosure to Courts or by Law or Other Rules. Nothing in this Clause 7 shall preclude disclosure of any Confidential Information required by any court entitled by law to disclosure of the same, or which is required by law to be disclosed (for example, without limitation, in a Securities and Exchange Commission filing), provided that the Receiving Party promptly notifies the Disclosing Party when such requirement to disclose has arisen, to enable the Disclosing Party to seek an appropriate protective order and to make known to the said court or other body the proprietary nature of the Confidential Information and to make any applicable claim of confidentiality in respect thereof. The Receiving Party agrees to co-operate in any appropriate action which the Disclosing Party may decide to take. If the Receiving Party is advised to make a disclosure in accordance with this Clause 7.5 it shall only make a disclosure to the extent to which it is obliged.
|
7.6.
|
Survival. The provisions of this Clause 7 shall survive termination or expiry of this Agreement and shall continue for a period of 10 years from the date of that termination or expiry.
|
8.1.
|
Duration. This Agreement shall commence on the date of execution and shall continue unless terminated in accordance with the provisions of Clause 8.2.
|
8.2.
|
Termination. Subject to Clause 9 and Clause 2.2(e), this Agreement may be terminated in the following ways:
|
(a)
|
by either Party by giving not less than two (2) years' prior written notice, not to be given earlier than three (3) calendar years following execution of this Agreement; or
|
(b)
|
by either Party forthwith if the other is in breach of this Agreement and does not rectify such breach (if such breach is capable of remedy) within 30 days of receipt of written notice from the first Party requiring rectification of the breach, provided that it is intended that the parties will discuss any alleged breach and its remediation as soon as it is known; or
|
(c)
|
by either Party forthwith upon written notice if the other has a liquidator, receiver, manager receiver or administrator appointed, or ceases to continue trading or is unable to pay debts (as defined in Section 123 of the Insolvency Act 1986 (England and Wales)) or the equivalent occurs in any jurisdiction in which the other is resident or carried on business.
|
(d)
|
automatically if no binding order is placed by Dyax for three (3) consecutive Years, unless the parties agree in writing to continue this Agreement.
|
8.3.
|
Consequences. The following provisions shall apply in the event of termination under Clause 8.2 above:
|
(a)
|
Unless termination is effective forthwith, the Agreement shall continue to operate as normal during the period following notice of termination. For example, but without limitation, forecasting, ordering, manufacture and delivery shall continue until the date of actual termination.
|
(b)
|
Unless the Agreement is terminated for Fujifilm's unremedied breach or insolvency under Clause 8.2(b) or (c), Dyax shall remain liable to pay for all Bulk Drug Substance manufactured but not yet delivered, all Bulk Drug Substance which is the subject of a binding order, and any additional sums payable under Clauses 4.3-4.5 related thereto.
|
(c)
|
If Dyax terminates for Fujifilm's unremedied breach or insolvency under Clause 8.2(b) or (c), Dyax shall have the right but not the obligation to take delivery of any Bulk Drug Substance manufactured but not yet delivered and/or any Bulk Drug Substance which is the subject of a binding order, subject in each case to making payment for such Bulk Drug Substance and any additional sums payable under Clauses 4.3-4.5 related thereto.
|
8.4.
|
Technology Transfer. At Dyax's request on termination, Fujifilm shall provide reasonable cooperation to assist Dyax with technical transfer of the Process to an alternative manufacturer, subject to payment of a reasonable fee to Fujifilm in respect of such transfer activity. Notwithstanding the foregoing provisions of this Clause 8.3, in the event that Dyax terminates under Clause 8.2(c) due to Fujifilm's material breach, the assistance provided, shall be at Fujifilm's reasonable expense and free of charge to Dyax.
|
8.5.
|
Acquired Rights. Termination or expiry of this Agreement, for whatever reason, shall not prejudice the acquired rights of either party, including the right to payment for services actually performed under this Agreement pursuant to Clause 3.
|
8.6.
|
Survival. The provisions of Clauses 2.2(e), 3.7, 4.6, 4.9, 5, 6, 7, 8, 11, 16 and 18 shall survive the termination or expiry of this Agreement in so far as it is necessary to give effect to any continuing rights and/or obligations.
|
11.1.
|
Press Releases or Other Announcements. Subject to Clause 11.2, the parties agree that neither of them will make any official press release, announcement or other formal publicity relating to the transactions which are the subject of this Agreement, or any ancillary matter, without first obtaining in each case the prior written consent of the other party (which consent will not be unreasonably withheld).
|
11.2.
|
Publications. If during the period of confidentiality specified in Clause 7, either party or any of their employees should wish to publish any document, including a paper, or file a patent application incorporating any of the results arising from the work under this Agreement or which incorporates any Confidential Information of the other party, that party shall provide the other party with at least 60 days' notice and provide a copy thereof prior to its submission for publication. The other party shall be entitled to withhold consent for such publication or application, and publication will be delayed, if in the reasonable opinion of the other party it will be necessary to delay publication in order to file or procure patent application or rights protection in respect of any invention or discovery arising from the work under this Agreement or to protect the confidentiality of any information considered by that party to be confidential.
|
12.1.
|
Successors. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective legal successors.
|
12.2.
|
Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal successors but shall not otherwise be assignable by either party, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, provided that either party may assign this Agreement without consent to a purchaser of the whole or part of the business to which this Agreement relates (provided that notice of such assignment is given in writing to the other).
|
12.3.
|
Subcontracting. Fujifilm shall be entitled to subcontract certain analytical work and raw materials testing work to support the work under this Agreement, subject to inclusion in such subcontract of confidentiality and intellectual property provisions no less onerous than those contained herein and provided that Fujifilm shall be liable for any acts or omissions of any subcontractor as if such acts or omissions were Fujifilm's own.
|
16.1.
|
Notices in writing. Any notice or other communication required or permitted under this Agreement shall be in writing which may take the form of a letter or facsimile and shall be sent by prepaid post, facsimile, or hand delivery (including messenger service). The addresses for any such notice or other communication shall be those stated on the first page of this Agreement.
|
16.2.
|
Delivery. Any party may, at any time by written notice to the other parties, change the address or the facsimile numbers to which notices or other communications shall be sent. All notices and other communications shall have been duly given or made (i) when delivered by hand (including by messenger service) upon delivery or (ii) when delivered by post upon delivery or (iii) when faxed upon receipt of a legible copy by recipient and production of a satisfactory transmission report by sender confirming transmission of the fax in full to the appropriate number by the fax machine which sent the fax. Notwithstanding the foregoing, notices given under Clause 8 shall be given by at least two (2) of the forms referred to in this Clause 16.2.
|
18.1.
|
Law. This Agreement is governed by and shall be construed and interpreted in accordance with the laws of England. Any proceedings between the parties shall be conducted in the English language.
|
18.2.
|
Referral to Senior Managers. Prior to any dispute, difference or disagreement concerning this Agreement proceeding to litigation through the Court pursuant to Clauses 18.1 and 18.6 the parties shall seek to resolve the matter within thirty days by referring it to the title, Fujifilm and the President and Chief Operations Officer of Dyax. Notwithstanding the foregoing, any disputes, differences or disagreements concerning quality-related issues shall be dealt with in accordance with the procedure set out in the dispute resolution section of the Quality Agreement.
|
18.3.
|
Interim Steps. Neither of the parties shall be deemed to be precluded from taking such interim formal steps as may be considered necessary to protect such party's position while the procedures referred to in Clause 18.2 are pursued.
|
18.4.
|
Jurisdiction. Except as provided for in Clauses 18.2 and 18.3, in relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement each of the parties irrevocably submits to the exclusive jurisdiction of the Courts of England.
|
Signature
|
/s/ Steve Bagshaw
|
Name
|
Steve Bagshaw
|
Position
|
Managing Director
|
Date
|
2 JUL 2012
|
For and on behalf of DYAX CORP.
|
|
Signature
|
/s/ Lisa Sperry
|
Name
|
Lisa Sperry
|
Position
|
Senior Director Quality
|
Date
|
29 JUN 2012
|
I, Gustav A. Christensen, certify that:
|
|||
1.
|
I have reviewed this quarterly report on Form 10-Q of Dyax Corp.;
|
||
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
||
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
||
4.
|
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
||
|
(a)
|
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
||
|
(c)
|
|
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
(d)
|
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
||
|
(a)
|
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
|
|
(b)
|
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
Date: August 2, 2012
|
/s/Gustav A. Christensen | |
Gustav A. Christensen
|
||
President and Chief Executive Officer
|
I, George Migausky, certify that:
|
|||
1.
|
I have reviewed this quarterly report on Form 10-Q of Dyax Corp.;
|
||
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
||
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
||
4.
|
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
||
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
||
|
(c)
|
|
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
(d)
|
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
||
|
(a)
|
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
|
|
(b)
|
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
Date: August 2, 2012
|
/s/George Migausky | |
George Migausky
|
||
Executive Vice President and
|
||
Chief Financial Officer
|
||
Dated: August 2, 2012
|
/s/Gustav. A Christensen | |
Gustav A. Christensen
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President and Chief Executive Officer
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Dated: August 2, 2012
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/s/George Migausky | |
George Migausky
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Executive Vice President and
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Chief Financial Officer
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