EXHIBIT 10.2
***Text Omitted and Filed
Separately with the Securities and Exchange
Commission. Confidential
Treatment Requested Under
17 C.F.R. Sections 200.80(b)(4) and
240.24b-2
COST ALLOCATION
AGREEMENT
This COST ALLOCATION
AGREEMENT (this “Agreement” ) is
entered into and effective as of May 4, 2009 by and between
ELI LILLY AND COMPANY , a corporation organized and existing
under the laws of the State of Indiana, whose principal place of
business is Lilly Corporate Center, Indianapolis, Indiana, 46285,
United States of America ( “Lilly” ) and
AMYLIN PHARMACEUTICALS, INC. , a corporation organized and
existing under the laws of Delaware, whose principal place of
business is 9360 Towne Centre Drive, San Diego, California
92121, United States of America (
“Amylin” ). Unless otherwise
designated, capitalized terms used but not otherwise defined herein
shall have the meanings provided in the Collaboration Agreement
(defined below).
WHEREAS, Lilly and Amylin are parties to several
agreements, including: (i) that certain Collaboration
Agreement, dated September 19, 2002, as amended to date (the
“Collaboration Agreement” ) (including by
the Amendment to Collaboration Agreement, dated October 31,
2006 (the “Amendment” )) and
(ii) that certain Exenatide Once Weekly Supply Agreement,
dated October 16, 2008 (the “EQW
Agreement” and together with the Collaboration
Agreement, the “Impacted Agreements”
);
WHEREAS, each of the Impacted Agreements provide that the
Parties will share certain costs related to the
collaboration;
WHEREAS, the Parties have had on-going discussions
regarding the proper allocation of global Development and
Commercialization Costs under the Collaboration Agreement;
and
WHEREAS, the Parties now wish to enter into this
Agreement to (i) set forth the terms upon which all
Development Costs, Commercialization Costs, and EQW Manufacturing
Development Costs, incurred from and after January 1, 2009 in
connection with the Impacted Agreements, will be shared by the
parties, and (ii) adjust the royalties paid to Amylin in
connection with sales of Products outside the United States from
and after January 1, 2009.
NOW, THEREFORE
, in consideration of the mutual
covenants and agreements set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lilly and Amylin agree as follows:
1.
Cost Sharing.
Except as otherwise set forth
below, effective as of and after January 1, 2009, all
Development Costs, Commercialization Costs, and EQW Manufacturing
Development Costs (as defined in the EQW Agreement) which are
subject to cost-sharing provisions in the Impacted Agreements shall
be shared by the Parties as follows:
(a)
US Costs. Notwithstanding anything to the contrary
in the Impacted Agreements, Lilly shall pay 50% and Amylin shall
pay 50% of the Development Costs and/or Commercialization Costs
associated with activities undertaken with the expectation of
generating utility predominantly in the United States (
“US Costs” ), regardless of the degree of
utility actually realized in the Territory outside the United
States (“ OUS ”), including by way of
example and without limitation, Study GWCO costs,
Amylin-Lilly Grant Office (“ALGO”) costs, US sales
force costs, and US marketing and commercialization
expenses.
*** Confidential Treatment
Requested
1