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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(X) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File Number 0-12406
IMMUNEX CORPORATION
(exact name of registrant as specified in its charter)
Washington 51-0346580
- ------------------------------------ ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
51 University Street, Seattle, WA 98101
(Address of principal executive offices)
Registrant's telephone number, including area code (206) 587-0430
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive Proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendments to
this Form 10-K. [ X ]
The aggregate market value of the voting stock held by non-affiliates of
the registrant as of March 13, 1996 was: 233,046,000. Excludes 24,444,000
shares of common stock held by directors, officers and shareholders whose
ownership exceeds five percent of the shares outstanding at March 13, 1996.
Exclusion of shares held by any person should not be construed to indicate that
such person possesses the power, direct or indirect, to direct or cause the
direction of the management or policies of the registrant, or that such person
is controlled by or is under common control with the registrant.
Common stock outstanding at March 12, 1997: 39,605,089 shares.
Documents incorporated by reference:
(1) Portions of the Company's definitive Proxy Statement for the annual meeting
of shareholders to be held on April 30, 1997 are incorporated by reference
in Part III.
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PART I
ITEM 1. BUSINESS
This document includes certain forward-looking statements made pursuant to
the safe harbor provisions of the Private Securities Litigation Reform Act of
1995. The words "believes," "anticipates," "expects" and similar expressions
are intended to identify such forward-looking statements. Such statements are
subject to certain risks and uncertainties that could cause actual results to
differ materially from those anticipated by the statements made by Immunex
Corporation ("Immunex" or the "Company"). Factors which could affect the
Company's actual results are described in "Risk Factors" below. Readers are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date hereof. The Company undertakes no obligation to
publicly release the result of any revisions to these forward-looking statements
that may be made to reflect events or circumstances after the date hereof or to
reflect the occurrence of unanticipated events.
PRODUCTS
Immunex is a biopharmaceutical company that discovers and develops,
manufactures and markets innovative therapeutic products for the treatment of
cancer, infectious diseases and immunological disorders.
Immunex is currently manufacturing and marketing LEUKINE-Registered
Trademark- granulocyte-macrophage colony stimulating factor ("GM-CSF"), and
marketing NOVANTRONE-Registered Trademark- (mitoxantrone) and five additional
oncology products (the foregoing products other than LEUKINE, together with
certain other products under development, are referred to herein as the "Non-
Biological Oncology Products") in the United States ("U.S."). As a result of
the 1993 merger (the "Merger") of Immunex and Lederle Oncology Corporation, a
subsidiary of American Cyanamid Company ("Cyanamid") created for the purpose of
merging Cyanamid's Lederle Laboratories oncology business in the U.S. and Canada
("North America") (the "Lederle Oncology Business") with the biopharmaceutical
business of Immunex, Immunex was assigned certain rights relating to the Non-
Biological Oncology Products in North America. Cyanamid currently owns
approximately 54.3% of the outstanding common stock of Immunex, on a fully
diluted basis. In November 1994, American Home Products Corporation ("AHP")
acquired all of the common stock of Cyanamid. Prior to the acquisition of
Cyanamid by AHP, Immunex and AHP entered into an agreement under which AHP
agreed to protect Immunex's rights under its agreements with Cyanamid and be
bound by Cyanamid's obligations under such agreements, including certain
standstill restrictions agreed to by Cyanamid in connection with the Merger. As
discussed below, AHP or various divisions or affiliates of AHP, including Wyeth-
Ayerst Research, Wyeth-Ayerst Laboratories and Wyeth-Ayerst International, Inc.,
have assumed certain of the rights and obligations of Cyanamid under the various
agreements, or amended such agreements, that Immunex and Cyanamid entered into
at the time of the Merger or thereafter. In the following discussion, "AHP"
refers to AHP, or its various divisions or affiliates, including Cyanamid.
Immunex, alone or with Wyeth-Ayerst Research, is testing three new
proprietary biotechnology products in human clinical trials: ENBREL-TM-, a
soluble tumor necrosis factor receptor fusion protein ("TNFR-Fc"), soluble Flt3-
ligand ("Flt3-L") (a blood cell growth factor) and soluble IL-4 receptor ("IL-
4R"). Immunex is investigating certain other drug candidates on a preclinical
basis, including CD40-ligand ("CD40-L") and Interleukin-15 (anti-cancer) ("IL-
15"), CD39 (anti-thrombotic) ("CD39"), TNF Related Apoptosis Inducing Ligand
(anti-cancer) ("TRAIL") and Interleukin-17 receptor (transplantation) ("IL-
17R"). Immunex and Wyeth-Ayerst Research are jointly collaborating on a
preclinical program to develop TNF-alpha converting enzyme ("TACE") antagonists
(anti-inflammatory). Wyeth-Ayerst Research is investigating certain non-
biologic compounds, including EGFR antagonists (anti-cancer) and rapamycin
analogs (anti-cancer).
Pharmaceutical products under development are required to undergo several
phases of testing before receiving approval for marketing. In the preclinical
phase, a product is evaluated in animal models of human disease to enable
preparation of an investigational new drug application ("IND"). There are three
phases of clinical trials. In general, Phase I trials determine the safety of a
proposed therapeutic for administration to patients; Phase II trials examine
efficacy and dosing; and Phase III trials, which may be placebo-controlled,
measure the efficacy of a proposed therapeutic in comparison to approved
therapies. These trials generate the data required for regulatory approval to
market products.
Data from human trials are submitted to the U.S. Food and Drug
Administration (the "FDA") in a new drug application ("NDA") or a biologics
license application ("BLA") and, with respect to products to be marketed in
Canada, to the Canadian Health Protection Bureau ("CHPB") in a new drug
submission ("NDS"). Data regarding manufacturing and bioequivalence of generic
drug products are submitted to the FDA in an abbreviated NDA ("ANDA") and to the
CHPB in an abbreviated NDS ("A/NDS"). Preparing an NDA, BLA, NDS, ANDA or A/NDS
involves considerable data collection, verification and analysis.
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A summary of the Company's products is provided in the following table.
The information in the table is provided solely for convenience of reference and
is qualified in its entirety by the detailed discussion of each product and the
related research and development activities following the table.
Products for which Immunex owns marketing rights or which are in human
clinical trials are described in the table below.
<TABLE>
<CAPTION>
Geographic Development
Product Market Status Clinical Indication
------- ---------- ----------- -------------------
<S> <C> <C> <C>
LEUKINE-Registered Trademark- U.S. Marketed Bone marrow transplant engraftment (autologous
(GM-CSF) and allogeneic) or failure, acceleration of neutrophil
recovery and reduction of severe and life-threatening
infections in patients with acute myelogenous leukemia
("AML"), peripheral blood progenitor cell ("PBPC")
mobilization and transplantation
BLA Filed (1) Treatment of neutropenia resulting from chemotherapy in
solid tumors
Phase II/III Treatment of opportunistic infections in patients
infected with the human immunodeficiency virus ("HIV"),
trauma patients, neonatal sepsis, vaccine adjuvancy
NOVANTRONE-Registered Trademark- U.S. Marketed Acute nonlymphocytic leukemia ("ANLL"),
mitoxantrone hormone refractory prostate cancer ("HRPC")
Canada Marketed (2) ANLL, advanced breast cancer, non-Hodgkin's lymphoma,
hepatoma, relapsed acute lymphotic leukemia
U.S. Phase II Breast and ovarian cancers, Non-Hodgkin's lymphoma
THIOPLEX-Registered Trademark- U.S. and Canada Marketed (2) Palliative treatment of a variety of tumors
lyophilized thiotepa
Methotrexate injectable U.S. and Canada Marketed (2) Various neoplastic diseases
AMICAR-Registered Trademark- U.S. and Canada Marketed (2) Hemostasis
aminocaproic acid
LEVOPROME-Registered Trademark- U.S. Marketed Analgesia
methotrimeprazine
Leucovorin calcium U.S. and Canada Marketed (2) Methotrexate rescue, modulation of 5-fluorouracil
("5-FU") drug therapy in advanced colorectal cancer
Paclitaxel injection U.S. and Canada ANDA filings Breast and ovarian cancers
prepared; A/NDS
filed
ENBREL-TM- (TNFR-Fc) U.S. and Canada Phase III Rheumatoid arthritis ("RA")
Flt3-L U.S. and Canada Phase I/II Stem cell mobilization/expansion, dendritic cell
expansion
Worldwide Preclinical Dendritic cell growth, vaccine adjuvancy
IL-4R U.S. and Canada Phase I/II Asthma
</TABLE>
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(1) LEUKINE is approved in the U.S. for the clinical indications described
in the foregoing table. Immunex has submitted amendments to its BLA for GM-CSF,
seeking FDA approval for additional label indications for prophylaxis of
chemotherapy-induced neutropenia in patients with solid tumors. In 1994,
Immunex and AHP re-acquired all rights in GM-CSF previously held by Behringwerke
AG ("Behringwerke"), a subsidiary of Hoechst AG ("Hoechst"). See "Relationship
With Hoechst AG."
(2) NOVANTRONE, THIOPLEX, methotrexate injectable, AMICAR and leucovorin
calcium are currently distributed in Canada by Wyeth-Ayerst International, Inc.
pursuant to a distribution agreement with Immunex.
CYTOKINE PRODUCTS
Most of the Company's biotechnology products are recombinant analogs of
cytokines and cytokine receptors. Cytokines are protein messengers that
coordinate the functions of immune cells (white blood cells) and certain other
cells and tissues. Immune cells include: granulocytes, macrophages and
eosinophils, all of which are scavenger cells specialized for uptake and
disposal of foreign particles or infectious agents; B-cells, which produce
antibodies to "flag" foreign particles or diseased cells for destruction;
cytotoxic T-cells and natural killer cells, which recognize, contact and kill
cancerous or virus-infected cells; and helper T-cells, which control and
coordinate the function of other immune cells. Immunex has developed
recombinant cytokine products capable of expanding and activating these immune
cell populations, all of which must interact to provide a normal immune
response. Immunex has also cloned and expressed genes encoding cytokine
receptors. Using genetic engineering techniques, Immunex has produced soluble
versions of cytokine receptors, including fusions of soluble receptors with
fragments of human antibodies, that have been shown to be capable of suppressing
immune responses by binding to and inactivating cytokines. Immunex has also
cloned certain enzymes responsible for secretion of soluble cytokines and
receptors and for propagating the signals necessary to activate cytokine target
cells for use as targets in small molecule drug discovery.
LEUKINE (SARGRAMOSTIM, GM-CSF). GM-CSF stimulates the growth and
differentiation of granulocytes and macrophages. In 1984, Immunex cloned and
expressed a human GM-CSF gene, and subsequently designed an altered, or analog,
form of the protein. This analog, which is exclusively manufactured by Immunex
using recombinant yeast technology, has been designated "sargramostim."
Sargramostim possesses the biological activity of natural human GM-CSF but is a
chemically distinct molecule. Immunex has been granted two U.S. patents and one
European patent covering sargramostim. Certain competitors, however, have filed
patent applications or have been issued patents relating to GM-CSF that could
adversely affect the Company's ability to market LEUKINE. See "Patents,
Licenses and Trademarks."
Clinical testing has demonstrated that GM-CSF is effective in facilitating
bone marrow transplant ("BMT") therapies currently used for the treatment of
acute leukemia, lymphoma and Hodgkin's disease and in rescuing patients whose
BMT grafts have failed. In March 1991, the FDA approved GM-CSF for facilitating
BMT engraftment and in December 1991 approved GM-CSF for treatment of BMT graft
failure. In March 1993, Immunex filed an amendment to its BLA for LEUKINE to
obtain FDA approval for an additional label indication for prophylaxis of
chemotherapy-induced neutropenia. Since the 1993 filing, Immunex has
supplemented the original filing with additional data as it became available.
In April 1995, the FDA Biological Response Modifiers Committee declined to
recommend approval of LEUKINE for the neutropenia indication. The Committee's
decision not to recommend approval contravened a prior agreement between the FDA
and Immunex regarding the acceptability of surrogate clinical endpoints (e.g.,
neutrophil recovery data) as primary endpoints for approval. In view of this
and certain other issues concerning the Committee's decision making process,
Immunex has continued to seek approval of this indication. Immunex has met with
the FDA to discuss various approaches to approval of this indication. Such
discussions have recently included the presentation of supplemental data
acquired from ongoing clinical studies in order to support approval of this
indication. Although such discussions have not yet yielded results, the BLA
amendment for the neutropenia indication is still pending at the FDA. Although
Immunex believes that this amendment to the BLA for LEUKINE is approvable, no
assurances can be given regarding the duration or outcome of the FDA review
process.
In April 1994, Immunex filed a second amendment to its BLA for LEUKINE to
obtain approval of a label indication for acceleration of neutrophil recovery
and reduction of mortality associated with treatment of patients with AML. This
new indication was approved in September 1995. In late 1995, Immunex received
marketing approval of additional label indications for allogeneic BMT and for
PBPC mobilization and transplantation.
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In 1994, Immunex began Phase II/III clinical trials to investigate the
efficacy of GM-CSF therapy for preventing infections in premature neonates and
in surgery and trauma patients. A cohort analysis in the neonatal sepsis trial
was completed in November 1995, which indicated that the infants receiving
LEUKINE experienced significantly fewer infections. A Phase III study in this
indication is continuing. A planned interim analysis for safety was completed
for this Phase III neonatal sepsis trial in November 1996, which resulted in a
recommendation by the Safety Review Board that the trial could continue.
Immunex completed a planned safety and efficacy interim analysis of the clinical
trial of GM-CSF therapy for preventing infections in surgery, which resulted in
the Company discontinuing this trial in mid 1996 as no clear efficacy was
observed.
In January 1995, Immunex filed a supplemental BLA with the FDA to obtain
approval of a liquid formulation of LEUKINE, which Immunex plans to provide in
500 microgram and 1 milligram multi-dose vials. The multi-dose liquid
formulation will be more convenient to use and store than the current
lyophilized formulation. The FDA approved the supplemental BLA in November
1996, and Immunex began selling the 500 microgram vial multi-dose liquid
formulation in December 1996.
FLt3-L. In 1993, Immunex cloned cDNAs encoding a ligand for the Flt3
receptor ("Flt3-L"). Flt3-L binds to a receptor that is located on primitive
hematopoietic cells, and has been shown to be capable of mobilizing PBPC alone,
and in combination with other cytokines such as GM-CSF or Amgen Inc.'s ("Amgen")
product, G-CSF. Flt3-L is in Phase I safety studies intended to assess the
utility of this factor in augmenting harvest of PBPC and other hematopoietic
precursors for transplantation following chemotherapy. A single dose
administration of Flt3-L in healthy volunteers in Phase I studies indicated no
safety concerns, and a multiple-dose Phase I study in healthy volunteers was
commenced in 1996. In the multiple-dose Phase I study, which is continuing,
administration of Flt3-L indicated no safety concerns at the multiple dosage
levels studied. Flt3-L has also been shown to be useful in stimulating the
generation of dendritic cells, which are specialized immune cells that are
involved in the presentation of antigens to T-cells. The generation of a large
population of dendritic cells provides a new approach to developing vaccine
adjuvants. Immunex plans to commence Phase II studies of Flt3-L as a PBPC
mobilizer in 1997 in collaboration with Wyeth-Ayerst Research. In 1996 Immunex
was granted a significant U.S. patent covering Flt3-L DNA, and Immunex is
currently seeking patents on a wide variety of uses for Flt3-L.
INTERLEUKIN-2 ("IL-2"). IL-2 is a cytokine that controls the proliferation
and activation of T-cells. It can both augment normal immune function and help
restore deficient immune responses. In 1983, Immunex entered into license
agreements with Hoffmann-La Roche, Inc. and its parent, F. Hoffmann La Roche &
Company, Limited Company of Basel, Switzerland (collectively, "Roche"), pursuant
to which Immunex is receiving royalties on worldwide sales of IL-2 products by
Roche and its sublicensees, including Chiron. Chiron's PROLEUKIN-Registered
Trademark-IL-2 was approved for treatment of metastatic renal cancers in several
European countries in 1990 and 1991. In June 1992, the FDA approved the
marketing of PROLEUKIN IL-2 for treating metastatic renal cancer patients who
are asymptomatic or who are symptomatic but ambulatory. PROLEUKIN is a
trademark of Chiron.
In February 1990, Immunex and Ajinomoto of Japan entered into certain
agreements concerning IL-2 rights in Japan, Korea and Taiwan. Under these
agreements, Immunex is entitled to royalties based on sales of IL-2 in such
countries by Ajinomoto and its licensees.
PIXY321. In view of results obtained from two Phase III clinical studies
of PIXY321 (GM-CSF/IL-3 fusion protein) in late 1995, which failed to indicate a
statistically significant improvement over the control drug in such studies,
Immunex and AHP have determined that further clinical development of PIXY321 is
not warranted, and Immunex has ceased efforts to commercialize PIXY321.
NEW CYTOKINES. Immunex scientists have cloned genes encoding several new
cytokines that are now being characterized in preclinical studies.
IL-15. Immunex has cloned cDNAs encoding a cytokine now known as IL-
15, a T-cell growth factor that mimics certain effects of IL-2. IL-15 has also
shown the ability to protect intestinal epithelial cells in the mucosa from the
harmful effects of chemotherapy or radiation. IL-15 was examined in preclinical
studies in 1996, and such studies are anticipated to be continued in 1997.
CD40-L. Immunex has also cloned cDNAs encoding a ligand for the cell
surface antigen CD40. This ligand appears to be a required signal in the
development of an antibody-based immune response. Thus, CD40-L may be useful as
a vaccine adjuvant. In addition, soluble CD40-L has been shown to be useful in
directly arresting the growth of certain B-cell lymphomas and epithelial cancers
in laboratory experiments. Immunex intends to commence toxicology studies of
CD40-L in 1997.
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CD39; TRAIL. Immunex has also cloned the CD39 cell surface molecule,
which is an ADPase enzyme which can prevent platelet aggregation IN VITRO and is
currently being tested in models where its proposed utility as an anti-
thrombotic agent can be assessed. Immunex has also cloned TRAIL, which induces
apoptosis of a number of tumor cell types. Recombinant TRAIL is currently being
tested in models of tumor growth in experimental animals.
OTHER NEW CYTOKINES: Several other novel cytokines are currently at
earlier stages of IN VITRO assessment with third party collaborators. Immunex
has cloned and expressed cDNAs for a family of molecules known as "ligands for
eph-related protein kinases" or "LERKS," and in 1995 Immunex granted an
exclusive, royalty-bearing worldwide license for neurobiology uses under its
LERK patent rights and technology to Genentech, Inc ("Genentech"). In 1996,
Immunex entered into an agreement with Biogen, Inc. ("Biogen") for development
outside the U.S. of anti CD40-L antibodies in the areas of transplantation and
inflammation.
RECEPTOR PRODUCTS
Cytokines act upon immune cells by binding to specific receptors. The
binding of a cytokine to its receptor triggers a complex series of events within
a responsive cell that transmits the cytokine's signal to that cell. This
signal can stimulate cell division or production of antibodies, enzymes or other
cytokines. In this way, circulating cytokines can control and coordinate the
function of immune cells located throughout the body.
Using genetic engineering techniques, Immunex scientists have produced
soluble versions of cytokine receptors. A soluble cytokine receptor retains the
ability to bind to a specific cytokine, but lacks that portion of the natural
receptor that is attached to a cell. This property enables the soluble cytokine
receptor to circulate in the body after administration, where it can bind to and
inactivate circulating cytokines, preventing interaction of the cytokines with
immune cells and thereby neutralizing the development of an autoimmune or
inflammatory response. In view of results obtained in certain preclinical and
clinical studies, Immunex believes that soluble cytokine receptors may be
effective as therapeutics to counteract autoimmune or inflammatory diseases.
Immunex owns exclusive rights to Interleukin-1 receptor ("IL-1R"), IL-4R,
Interleukin-7 receptor ("IL-7R") and tumor necrosis factor receptor ("TNFR")
(together, the "Receptor Products") for North America. Pursuant to a 1990
agreement, Immunex granted exclusive rights to Behringwerke for the Receptor
Products for all parts of the world outside of North America. This grant was
made in consideration of a grant by Behringwerke to Immunex of U.S. co-marketing
rights for GM-CSF and certain other colony stimulating factor ("CSF") products.
Immunex is entitled to royalties on future receptor product sales by
Behringwerke. In July 1992, Immunex reacquired worldwide rights to TNFR from
Behringwerke. See "Relationship with Hoechst AG." At the effective time of the
Merger, Immunex's rights to TNFR outside North America were licensed to Cyanamid
and are currently held by AHP. See "Relationship with AHP and Cyanamid."
ENBREL (TNFR-Fc). Tumor necrosis factor ("TNF") is a cytokine produced by
activated T-cells and macrophages in the course of severe immune reactions, such
as the body's response to RA, severe bacterial infection (sepsis), asthma,
graft-versus host disease ("GVHD") and inflammatory bowel disease. Immunex has
produced a soluble TNF receptor fusion protein (p80) that combines two TNF-
binding domains derived from TNF receptor with a fragment of a human antibody
molecule. This fusion protein (TNFR-Fc) exhibits a long serum half-life and has
been shown to be capable of rapidly lowering serum TNF levels. Immunex has
received U.S. and European patents covering DNAs encoding p80 TNFR and certain
related molecules, and is seeking additional patents covering TNFR-Fc fusions
and methods of using TNFR proteins in treating certain diseases. However, other
parties are seeking or have received patents that could interfere with the
commercialization of ENBREL (TNFR-Fc) by the Company or AHP. See "Patents,
Licenses and Trademarks."
In November 1995, Immunex completed analysis of a Phase II randomized,
placebo-controlled, blinded clinical study of TNFR-Fc in patients with RA, a
progressively crippling disorder. Positive and statistically significant
results in favor of treatment with TNFR-Fc were achieved with respect to
multiple clinical endpoints. In 1996, the Company and AHP initiated two
additional studies of TNFR-Fc in this indication. The first study is an open-
label study with TNFR-Fc administration to patients that received the drug in
the Phase II study which was completed in November 1995. This open-label study
is intended to establish the longer term safety and efficacy of TNFR-Fc in
patients with RA. The second study is a Phase III study which is designed as a
repeat of the Phase II study which was completed in November 1995. Enrollment
in both studies has been completed, and results are expected to be known by the
end of 1997. In 1997, the Company also intends to conduct additional Phase III
studies of TNFR-Fc for RA. See "Supply."
The Company's ability to carry out expanded clinical trials will be
contingent upon availability of clinical product.
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IL-1R. IL-1R is a molecule that binds both IL-1 alpha and IL-1 beta.
Overproduction or inappropriate production of IL-1 has been implicated in the
development of autoimmune and inflammatory and allergic diseases such as
diabetes, asthma, systemic lupus erythematosis and inflammatory bowel disease,
and also in the development of septic shock. Immunex has produced genetically-
engineered soluble IL-1 receptors of two types, designated Type I and Type II,
and has conducted clinical studies of the Type I receptor. Based upon data
obtained in preclinical and Phase I clinical studies, Immunex believes that IL-
1R may be of therapeutic value in the treatment of a number of diseases and
conditions, including allergy, asthma, chronic and acute myelogenous leukemia,
organ transplant rejection, GVHD and inflammatory bowel disease. Immunex has
been granted five U.S. patents covering mammalian Type I IL-1R DNAs and
proteins, including soluble forms, and two U.S. patents covering Type II IL-1R
DNAs and proteins. Immunex has also been granted two U.S. patents covering
methods of using IL-1R to treat inflammation and allergy.
The Company conducted Phase I/II clinical trials of Type I IL-1R in 1991 in
allergy, RA, GVHD, experimental endotoxemia, and asthma patients. The studies
have shown that the product was safe as administered. The Company is currently
evaluating whether it should license its rights in IL-1R to another
pharmaceutical company for further development of an IL-1R product.
IL-4R. IL-4 is a cytokine that induces the proliferation of activated T-
cells and B-cells. IL-4 enhances the ability of specific, activated T-cells to
kill tumor cells, or infected or transplanted tissue. In addition, IL-4 is
responsible for promoting the production of specific types of antibodies,
including the IgE antibody involved in allergic and asthmatic reactions.
Immunex scientists have cloned genes encoding human and murine IL-4R and have
genetically engineered and produced a soluble receptor which binds IL-4.
Soluble IL-4R has been shown by Immunex and Behringwerke to inhibit IL-4
dependent immune responses in animal models. Based on these preclinical
studies, Immunex believes that soluble IL-4R may be effective in the treatment
of organ transplant rejection, GVHD, allergy, asthma and infectious diseases.
Immunex filed an IND for IL-4R in May 1994. A Phase I/II study of IL-4R in
asthma was completed in 1995. The Company has decided to pursue four additional
Phase I/II studies of IL-4R in asthmatics. These studies are underway and are
expected to be completed in 1997. Upon completion of these studies, the Company
will evaluate whether it should conduct additional trials itself or whether it
should pursue licensing its rights in IL-4R to another pharmaceutical company
for further development of an IL-4R product.
NEW RECEPTORS
IL-17R. The IL-17R has been identified by Immunex, and preliminary studies
have shown that a dimeric IL-17R-Fc fusion protein can prevent graft rejection
in a mouse model of solid organ transplant. Further studies are being conducted
to assess the utility of IL-17R in the transplant setting.
Several other novel cytokine receptors are currently at earlier stages of
IN VITRO and IN VIVO assessment.
NON-BIOLOGICAL ONCOLOGY PRODUCTS
Effective as of the Merger, Immunex acquired certain intellectual property
rights, including marketing rights, in North America relating to the Non-
Biological Oncology Products, including the following current products:
NOVANTRONE mitoxantrone, leucovorin calcium, thiotepa (including THIOPLEX),
AMICAR aminocaproic acid and LEVOPROME methotrimeprazine. Immunex also acquired
marketing rights in North America to methotrexate injectable and to etoposide
injection, a generic anticancer product that was approved by the FDA in March
1996, and to certain products that are the subject of pending regulatory filings
completed by Cyanamid. The rights acquired by Immunex as a result of the Merger
include patents, know-how, trademarks, clinical and other supporting data,
registrations and approvals from the FDA and the CHPB. Cyanamid also
transferred to Immunex its U.S. oncology marketing and sales force. In 1996, as
part of the Company's renegotiation of its research and development relationship
with AHP (see "Relationship with AHP and Cyanamid"), the Company relinquished
rights to AHP to certain new technologies for which Immunex had previously been
assigned North American rights, including humanized monoclonal antibody
conjugates, a multidrug resistance reversal agent and an oral CSF inducer.
Cyanamid did not transfer any manufacturing facilities, research assets,
other tangible assets or other personnel to Immunex. At the effective time of
the Merger ("Effective Time"), Immunex, Cyanamid and certain of its subsidiaries
entered into agreements providing for, among other things, Immunex's
contribution to and participation in oncology research by Cyanamid, the supply
and toll manufacturing of the Non-Biological Oncology Products by Cyanamid and
Lederle Parenterals, Inc. ("LPI") and Cyanamid's provision of certain other
services to Immunex. See "Relationship with AHP and Cyanamid."
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NOVANTRONE. NOVANTRONE is currently approved for the initial therapy of
ANLL and, in combination with steroids, for treatment of patients with pain
related to HRPC in the U.S., and for ANLL, advanced breast cancer, non-Hodgkin's
lymphoma and hepatoma in Canada. NOVANTRONE is an anthracenedione similar in
chemical structure to anthracyclines (doxorubicin and idarubicin), yet lacking
an amino sugar component that is thought to contribute to the cardiotoxicity
characteristic of anthracyclines. NOVANTRONE has a more favorable
nonhematological toxicity profile than anthracyclines; while the use of
NOVANTRONE may result in toxicities similar to those commonly occurring with
other chemotherapeutic agents (nausea, vomiting, alopecia, mucositis and
cardiotoxicity), these can be less frequent and less severe with NOVANTRONE than
with competing anthracycline products. A composition of matter patent covering
mitoxantrone has been assigned to Immunex. This patent expires in August 1997.
However, Immunex owns a U.S. patent, which does not expire until 2006, covering
the use of NOVANTRONE in the treatment of various cancers. See "Patents,
Licenses and Trademarks."
In May 1995, the Company and its clinical collaborators announced the
completion of a Phase III study of NOVANTRONE in patients with advanced prostate
cancer. When used in combination with steroids, therapy with NOVANTRONE had a
significant impact upon pain reduction and quality of life in patients with
HRPC. Patients receiving NOVANTRONE experienced marked reduction in pain. The
drug was well-tolerated, with little or no nausea or vomiting, and was
associated with improvement in various indicators of quality of life.
Preliminary data from a second Phase III study of NOVANTRONE in this indication
was supportive of results obtained in the other Phase III study. The Company
filed a supplemental NDA to obtain approval to market NOVANTRONE for this
indication in May 1996, and the supplemental NDA was given priority review
status by the FDA under the user fee guidelines. Accordingly, the FDA agreed to
review the application within six months, compared to the normal 12-month review
time.
In September 1996, the FDA Oncology Drugs Advisory Committee agreed that
Novantrone offers a net clinical benefit for late stage prostate cancer patients
and recommended that Novantrone be approved, in combination with steroids, for
treatment of patients with pain related to HRPC. In November 1996, the FDA
granted approval for this new indication for Novantrone. Novantrone is the
first chemotherapy drug approved for advanced HRPC.
LEUCOVORIN CALCIUM. Leucovorin is a racemic mixture of the dextro- and
levo- isomers of leucovorin used in methotrexate rescue therapy and in
modulation of 5-FU drug therapy in advanced colorectal cancer. Immunex sells
both liquid and tablet formulations of leucovorin. Leucovorin has no
significant patent protection and has significant generic competition. See
"Competition." A liquid formulation of leucovorin has been developed and an
ANDA for the liquid formulation was filed with the FDA in November 1996.
THIOTEPA AND THIOPLEX. Thiotepa is a cytotoxic agent approved for the
palliative treatment of a wide variety of tumor types, including adenocarcinomas
of the breast and ovary, superficial papillary bladder cancers and other
lymphomas such as lymphosarcomas and Hodgkin's disease, and for the control of
intracavity effusions secondary to localized or diffuse neoplastic disease of
serosal cavities. Immunex owns manufacturing process patents for thiotepa in
the U.S. and Canada that expire in 2007. Following FDA approval of an NDA for
THIOPLEX in December 1994, Immunex is now selling and distributing this
lyophilized formulation of thiotepa in the U.S. THIOPLEX is more stable and has
a longer shelf life than thiotepa. THIOPLEX is marketed in Canada by Wyeth-
Ayerst International under a distributorship agreement with Immunex.
METHOTREXATE INJECTABLE. Methotrexate injectable is an antimetabolite used
in the treatment of certain neoplastic diseases. Methotrexate injectable has no
significant patent protection and has significant generic competition. Immunex
distributes methotrexate injectable in the U.S. pursuant to a distribution
agreement with Cyanamid.
AMICAR AMINOCAPROIC ACID. AMICAR is a fibrinolysis-inhibitory agent useful
in enhancing hemostasis when fibrinolysis contributes to bleeding, which is
sometimes associated with neoplastic diseases. AMICAR is not subject to any
material patent protection.
LEVOPROME METHOTRIMEPRAZINE. LEVOPROME is a potent injectable analgesic
that is indicated for the relief of pain of moderate to marked degree of
severity in nonambulatory patients. LEVOPROME is not subject to any material
patent protection.
ETOPOSIDE INJECTION. In conjunction with ESI-Lederle, an AHP affiliate,
the Company received approval of an ANDA for etoposide injection in March 1996.
Etoposide is a semisynthetic derivative of podophyllotocin used in the treatment
of testicular and small cell lung cancers. In January 1997, the Company sold
its etoposide injection business to SuperGen, Inc.
PRODUCT LINE EXTENSIONS
NOVANTRONE MITOXANTRONE. Immunex and Wyeth-Ayerst Research are sponsoring
Phase II clinical trials using high dosage NOVANTRONE alone and in combination
with other oncology agents in ovarian and breast cancers and in Non-Hodgkin's
lymphoma. One of the protocols being tested involves use of NOVANTRONE in
combination with paclitaxel in breast cancer patients. If successful, these
trials could be expanded and continued to provide the basis for a supplemental
NDA to obtain approval of labeling for new indications.
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LEUCOVORIN CALCIUM. Immunex and Wyeth-Ayerst Research are sponsoring Phase
II clinical trials of leucovorin for use as 5-FU drug modulation therapy in the
treatment of breast, head and neck cancers. In addition, clinical trials of
leucovorin for such therapy in the treatment of advanced colorectal cancer are
nearing completion by third parties. Data from such research may be submitted
to the FDA by Immunex for the foregoing indications. There can be no assurance
that the clinical trial data will be such that Immunex will deem the evidence
adequate to support a supplemental NDA or that, if it does, the FDA will approve
the NDA or will approve it within a time sufficient to permit commercial
success.
ISOVORIN LEVOLEUCOVORIN. In view of inconclusive results obtained from
Phase II and Phase III clinical trials sponsored by Wyeth-Ayerst Research and
Immunex investigating the benefits of ISOVORIN LEVOLEUCOVORIN in the 5-FU
modulation indication in colorectal, breast, head and neck cancer therapies,
Immunex has decided to discontinue further development of ISOVORIN.
ONCOLOGY DISCOVERY RESEARCH BY WYETH-AYERST RESEARCH
Wyeth-Ayerst Research and Immunex are also researching and developing
certain new technologies for which Immunex has the option to acquire North
American rights. These research programs are focused on developing inhibitors
of specific molecular targets thought to be important in cancer development and
progression. Such research programs include the screening of Wyeth-Ayerst
Research chemical libraries for products with anti-cancer potential, including
compounds that may antagonize EGF receptors. In addition, Immunex is currently
evaluating whether to exercise its option to co-develop rapamycin analogs (anti-
cancer) in North America with Wyeth-Ayerst Research.
In 1996 the Company elected not to co-develop the calicheamicin monoclonal
conjugate CMA 676 or other calicheamicin antitumor drugs with Wyeth-Ayerst
Research.
PACLITAXEL
Paclitaxel is a chemotherapeutic agent that is extracted from the bark
of the Pacific yew tree. Bristol-Myers Squibb Company ("BMS") currently markets
paclitaxel for treatment of metastatic breast and ovarian cancers in North
America under the trademark TAXOL-Registered Trademark-. At present, BMS is the
holder of marketing exclusivity for paclitaxel in the U.S. under the Waxman-
Hatch Legislation. The term of this exclusivity expires in December 1997. In
1994, Cyanamid entered into an exclusive supply agreement with Hauser Chemical
Research, Inc. ("Hauser") under which Hauser will supply Cyanamid with Immunex's
requirements for paclitaxel for development and marketing in North America. At
the same time that Cyanamid entered into the supply agreement with Hauser,
Immunex and Cyanamid entered into a taxane agreement under which Cyanamid and
Immunex will collaborate in conducting clinical trials and obtaining regulatory
approval of paclitaxel in their respective territories, and Cyanamid will
manufacture and supply product to Immunex for sale in North America. Currently,
Wyeth-Ayerst International and Immunex are collaborating in the development of
paclitaxel for introduction into certain markets. In 1996, Wyeth-Ayerst
International converted its supply arrangement with Hauser to a nonexclusive
basis, permitting Hauser to supply other parties in territories outside North
America. In 1995, Immunex completed the filing of an A/NDS for paclitaxel in
Canada.
RELATIONSHIP WITH AHP AND CYANAMID
At a special meeting of stockholders held June 1, 1993, the
stockholders of predecessor Immunex Corporation ("Predecessor") approved and
adopted an Amended and Restated Agreement and Plan of Merger dated as of
December 15, 1992 (the "Merger Agreement") among Predecessor, Cyanamid, LPI and
Lederle Oncology Corporation, a wholly owned subsidiary of Cyanamid ("Merger
Subsidiary"). Pursuant to the Merger Agreement, Predecessor was merged with and
into Merger Subsidiary in accordance with the General Corporation Law of the
State of Delaware, with the Merger Subsidiary as the surviving corporation.
Prior to the Merger, Cyanamid and LPI contributed to Merger Subsidiary certain
assets and contractual obligations of the Lederle Oncology Business, together
with $350 million in cash.
As a result of the Merger, the separate corporate existence of
Predecessor ceased, and the assets and liabilities of Predecessor and Merger
Subsidiary became the assets and liabilities of a new corporation that was
renamed "Immunex Corporation." Each share of Predecessor Common Stock
outstanding immediately prior to the Effective Time was converted into the right
to receive $21 in cash (the "Cash Consideration"), and one share of common stock
("Common Stock") of the surviving corporation (the "Stock Consideration" and,
together with the Cash Consideration, the "Merger Consideration"). A
substantial portion of the $350 million contributed to Merger Subsidiary by
Cyanamid was used to pay the Cash Consideration.
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The common stock of Merger Subsidiary outstanding immediately prior to
the Effective Time, all of which was held by Cyanamid and LPI, was converted
into that number of shares of the Company's Common Stock equal to 53.5% of the
total number of shares of Common Stock outstanding immediately following the
Effective Time on a fully diluted basis. No appraisal rights were perfected.
By acquiring all of the common stock of Cyanamid in late 1994, AHP became the
effective owner of the shares of the Company's Common Stock held by Cyanamid.
In 1994, the Company re-incorporated in the State of Washington.
Simultaneously with entering into the Merger Agreement, Predecessor,
Cyanamid and Merger Subsidiary entered into an Amended and Restated Governance
Agreement ("Governance Agreement"), which sets forth, among other things,
certain agreements of the parties relating to (i) the corporate governance of
Immunex, including the composition of its Board of Directors (the "Immunex
Board"), (ii) rights of Cyanamid to purchase additional shares of Immunex Common
Stock from Immunex upon the occurrence of certain events, (iii) future
acquisitions and dispositions of Immunex securities by Cyanamid, (iv) the right
of members of the Immunex Board designated by Cyanamid to approve certain
corporate actions of Immunex, and (v) the requirement that a supermajority of
the members of the Immunex Board approve certain corporate actions of Immunex.
AHP has agreed to protect Immunex's rights under the Governance Agreement and be
bound by certain standstill restrictions set forth therein.
In addition, the Governance Agreement provides for payments to be made
by Cyanamid to Immunex in the event that products of the Lederle Oncology
Business and certain other products of Immunex do not achieve net sales targets.
The relevant specified net sales targets for the Lederle Oncology Business are:
$190.5 million in 1996 and $216.5 million in 1997. In the event that the
expected revenues are not achieved for any year, AHP will be obligated to make
certain payments to Immunex. AHP's payment obligations to Immunex for 1996
under these provisions amounted to $56 million, which amount was paid to Immunex
in February 1997. In no event will AHP's payment obligation to Immunex under
these provisions exceed $60 million for 1997. AHP's payment obligation to
Immunex under these provisions ceases with respect to calendar years after 1997.
Pursuant to the Merger Agreement, Cyanamid, Immunex and certain of
their respective subsidiaries entered into certain agreements (collectively, the
"Related Agreements"). The Related Agreements include a Research and
Development Agreement relating to ongoing cooperation in research and
development and the parties' commercialization of products resulting from such
efforts. Pursuant to this agreement, Immunex and Cyanamid established a
collaboration committee to supervise and coordinate oncology research and
development activities. This committee is now comprised of representatives of
Wyeth-Ayerst Research and Immunex. Immunex is providing financial support for
the oncology research and development program conducted by Wyeth-Ayerst
Research. This agreement and another Related Agreement together provide for the
commercialization of new oncology products by Immunex in North America, and by
AHP elsewhere. To the extent Immunex develops products or technology other than
new oncology products and determines not to market such products or technology
itself, Immunex has agreed to offer to AHP exclusive marketing rights to any
such products or technology before offering any marketing rights to third
parties. Other Related Agreements provide for, among other matters, the supply
and toll manufacture by Cyanamid or its subsidiaries for Immunex or its
subsidiaries of the Non-Biological Oncology Products, the licensing by Cyanamid
or its subsidiaries to Immunex of the LEDERLE and other trademarks for use on
Immunex products, and various other implementing licenses and distribution
agreements. The Related Agreements, together with the Governance Agreement,
establish the framework for the ongoing relationship between Immunex and AHP.
On November 1, 1995, AHP presented Immunex with an offer to acquire
the remaining shares of Immunex Common Stock not held by AHP for $14.50 per
share. The Immunex Board formed a Special Committee to consider the offer,
comprising all directors other than the directors that AHP is entitled to
designate pursuant to the Governance Agreement. The Special Committee retained
Alex. Brown & Sons, Incorporated, as the Special Committee's financial advisor.
After considering the offer and the recommendations of its financial and legal
advisors, the Special Committee informed AHP that it had decided to reject AHP's
offer as being inadequate.
In December 1995, AHP and Immunex entered into certain research and license
agreements under which Immunex granted AHP exclusive worldwide rights to develop
compounds that inhibit an enzyme known as TACE. TACE is involved in the
processing of cell-bound TNF to provide circulating TNF. There is evidence that
inhibiting this enzyme may be beneficial in treating inflammatory diseases and
conditions such as RA. Under the agreements, AHP will screen compounds using
recombinant TACE provided by Immunex. Immunex will receive license fees,
research payments, commercial development milestones and royalties on any
compounds that are commercialized by AHP.
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On July 17, 1996, the Immunex Board approved the terms of revised and
amended agreements among Immunex, Cyanamid and AHP relating to oncology products
and ENBREL (TNFR-Fc). Following such approval, Immunex, Cyanamid and AHP
entered into a new Research Agreement effective July 1, 1996, which terminates
and replaces the Research and Development Agreement between Immunex and Cyanamid
dated as of June 1, 1993. Immunex and AHP also (i) entered into a new TNFR
License and Development Agreement effective as of July 1, 1996 (the "TNFR
Agreement") and (ii) amended the Immunex New Oncology Product License Agreement
between Immunex and Cyanamid dated June 1, 1993 effective as of July 1, 1996
(the "INOP Amendment").
Under the terms of the superseded Research and Development Agreement,
Immunex was obligated to contribute $26.1 million in 1996, up to $38.3 million
in 1997 and 50% of AHP's oncology research and development expenses thereafter.
Under the terms of the new Research Agreement, Immunex will be funding 50% of
AHP's oncology discovery research expenditures, up to a maximum amount of $16
million per year (adjusted annually for inflation beginning in 1997) and Immunex
has the option to elect which products it will continue to support beyond the
discovery stage. Also, under the terms of the new and amended agreements,
Immunex retains North American marketing rights to ENBREL (TNFR-Fc) and those
oncology products resulting from its own research. AHP retains ex-North
American rights to oncology products discovered by Immunex.
Immunex's rights with respect to AHP oncology products were converted into
an option to obtain North American marketing rights to oncology products arising
from certain discovery research activities conducted at Wyeth-Ayerst Research
that are supported by Immunex contributions. Immunex's product rights do not
extend to any products resulting from third party collaborations of AHP,
products or technology acquired by AHP from third parties, or certain non-small
molecule products developed by AHP.
The option held by Immunex will be exercisable for a period of 90 days
following receipt by Immunex of notice from Wyeth-Ayerst Research that a product
has been selected by Wyeth-Ayerst Research for preclinical and clinical
development, together with certain relevant information concerning such product.
If Immunex exercises its option, the parties will negotiate and develop the
terms of a product license and development agreement under which Immunex will be
granted exclusive marketing rights in North America, and the parties will
equally share development expenses for such product for the North American and
European markets. If Immunex elects not to exercise its option, all rights in
the product will revert to Wyeth-Ayerst Research and AHP without further
obligations of any kind on Immunex. Immunex will also be entitled to
discontinue its support of the development process at certain decision events
coordinated with the product development cycle. If its decision to discontinue
development occurs following the completion of Phase II or Phase III studies,
Immunex will be entitled to a royalty or revenue sharing if AHP continues to
develop the product or licenses the product to a third party in North America.
Under the terms of the INOP Amendment, Immunex will provide notice to
Cyanamid if an Immunex product is selected by Immunex for preclinical and
clinical development, together with certain relevant information concerning such
product. Following receipt of such notice and information, Cyanamid will have
90 days in which to notify Immunex that it intends to retain its rights in such
product. If Cyanamid elects to retain its rights, the parties will negotiate
and develop the terms of a product development agreement governing the ongoing
development and commercialization of the retained product, including the equal
sharing of development expenses for such product for the North American and
European markets. If Cyanamid does not elect to retain its rights, all rights
in the product will revert to Immunex without further obligations of any kind to
Cyanamid or AHP.
The right of first refusal (the "ROFR") previously held by Cyanamid that
applies to Immunex products and technology was transferred to AHP under the new
Research Agreement and amended to address the diversity of technologies and
opportunities that may result from Immunex research, as well as the data needed
by Wyeth-Ayerst Research to make a decision regarding exercise of the ROFR. The
ROFR was extended to include ENBREL (TNFR-Fc) and Immunex oncology products in
North America. However, a 90-day, rather than 180-day, decision period will
apply to these products. At Immunex's request, AHP will review any product
prior to completion of Phase I clinical studies to exclude products of no
interest to AHP.
Immunex and AHP entered into a new TNFR Agreement which restates AHP's
exclusive rights to ENBREL (TNFR-Fc) outside of North America and addresses
joint project management, cost sharing, manufacturing responsibilities,
intellectual property protection and disposition of rights upon relinquishment
or termination of product development. Previously, AHP's rights in ENBREL
(TNFR-Fc) had been stated in the Research and Development Agreement between
Immunex and Cyanamid. The Research and Development Agreement has been
terminated and replaced by the new Research Agreement discussed above. Pursuant
to the TNFR Agreement, Immunex and AHP have also agreed to negotiate the terms
of a manufacturing agreement for the commercial supply by Immunex of ENBREL
(TNFR-Fc) to AHP.
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RELATIONSHIP WITH HOECHST AG
Pursuant to a 1984 research and license agreement that has been amended
periodically, Immunex and Hoechst, through its subsidiary Behringwerke, have
conducted an international collaborative research effort focusing on CSFs.
Under the agreement, Immunex granted exclusive worldwide license rights to
Behringwerke to develop, manufacture and market CSF products in consideration
for technology transfer payments, research support payments, and royalties on
sales of licensed products. Immunex and Behringwerke, together with
Behringwerke's U.S. affiliate, Hoechst-Roussel CSF (sargramostim) in the U.S.
In 1989, Immunex acquired co-marketing rights to sargramostim in the U.S. and
from March 1991 to April 1993, Immunex and HRPI co-marketed sargramostim in the
U.S. Immunex acquired HRPI's U.S. rights in April 1993. Behringwerke applied
for European approvals to market sargramostim for bone marrow transplant
indications, and initiated Phase III clinical trials in Europe for treatment of
prophylaxis of neutropenia resulting from radiotherapy or chemotherapy.
However, due to a blocking patent owned by Sandoz AG (now Novartis AG
("Novartis")), Behringwerke elected not to attempt to commercialize GM-CSF in
Europe. See "Patents, Licenses and Trademarks." Immunex reacquired worldwide
rights to sargramostim from Behringwerke in 1994, and licensed the rights
previously held by Behringwerke to AHP. Immunex has agreed to supply AHP's
requirements for marketing sargramostim outside North America. Immunex also
assumed responsibility for financing the completion of certain European trials
begun by Behringwerke, in order to acquire data useful in obtaining registration
of the product in other countries. In 1990, Immunex also granted Behringwerke
exclusive license rights to the Receptor Products for development and marketing
outside North America. Pursuant to a 1992 agreement between Behringwerke and
Immunex, Immunex reacquired Behringwerke's worldwide rights to TNFR, which it
has licensed to AHP. Immunex is entitled to certain payments and royalties on
sales of the other Receptor Products licensed to Behringwerke or its
sublicensees.
RELATIONSHIP WITH TARGETED GENETICS CORPORATION
Targeted Genetics Corporation ("Targeted Genetics") was formed by Immunex
in 1989 to develop proprietary human gene therapy treatments for acquired and
inherited diseases. Targeted Genetics is developing a broad base of gene and
cell based therapy technology, initially focused on treatments for cystic
fibrosis, cancer and infectious disease. Immunex currently holds an equity
interest in Targeted Genetics. Immunex granted a worldwide, exclusive field of
use license to Targeted Genetics for certain Immunex technology applicable to
gene therapy. In exchange, Targeted Genetics issued shares of stock to Immunex
and agreed to license to Immunex new technology developed by Targeted Genetics
in the area of cytokines. In addition, Targeted Genetics granted Immunex a
right of first offer with respect to non-cytokine technology if Targeted
Genetics intends to pursue a license agreement with a third party.
MARKETING AND DISTRIBUTION
Immunex sells its products in the U.S. through a specialized oncology-based
sales force that consists of approximately 105 sales representatives and sales
managers. The Company sells its products both to pharmaceutical wholesalers and
end users such as oncology clinics, hospitals and pharmacies. Orders are
received and processed by the Company through a centralized customer service and
sales support group. Shipping, warehousing and certain data processing services
are provided on a fee basis by an outside contractor.
COMPETITION
Competition in researching, developing, manufacturing and marketing
biopharmaceuticals and other oncology products is intense. Immunex is marketing
a group of cancer products and simultaneously developing an extensive portfolio
of cytokines, cytokine receptors and other immunological therapeutic products.
There are other companies, including established pharmaceutical and
biotechnology companies, that are researching, developing and marketing
products, based on related or competing technologies, that will compete with
products being developed by Immunex. Most of the cancer products marketed by
Immunex have established competitors. Significant competitors in the field of
oncology include BMS and Amgen. These competitors, in certain cases, have
substantially greater capital resources, greater marketing experience, and
larger research and development staffs and manufacturing facilities than
Immunex.
Several companies are marketing or developing products that compete or are
expected to compete with LEUKINE. One such company, Amgen, has been marketing
its competing G-CSF product since early 1991 and has achieved a majority share
of the U.S. market for CSFs.
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Several companies are developing products that are expected to compete with
ENBREL (TNFR-Fc). Roche is developing a TNFR-Fc fusion protein based upon a
distinct and different TNR receptor designated "p60." Amgen is developing a 1L-
1R receptor antagonist. Centocor Inc., Bayer AG and BASF AG ("BASF") are
developing monoclonal antibodies or antibody fragments that bind to TNF. Smith
Kline Beecham plc is developing an anti-CD4 monoclonal antibody. In spite of
promising early results on ENBREL (TNFR-Fc), there remain major tasks to be
accomplished before ENBREL (TNFR-Fc) can be commercialized. These tasks include
successfully manufacturing the product to complete Phase III clinical trials,
completing such trials to permit regulatory filing on a competitive basis and
scaling-up TNFR-Fc production to commercial quantities. See "Supply." Since
there are other companies developing TNF inhibitors for RA, delays could
adversely impact the Company's ability to gain market share in a competitive
market.
Immunex and other pharmaceutical firms compete primarily in performing
research and clinical testing, acquiring patents, developing efficient
manufacturing processes, securing regulatory approvals and marketing the
resulting products to physicians. Immunex believes that its strategic focus on
immunology has resulted in expertise that can be applied to reduce development
times, create innovative and cost-saving research techniques, optimize product
quality, and discover new products and applications. Immunex possesses
manufacturing facilities to produce recombinant protein products using microbial
or mammalian cell culture technologies. Professional clinical, legal,
regulatory affairs, marketing and sales staffs have been developed to enhance
the Company's scientific resources. Immunex possesses a specialized, well-
trained oncology sales force and comprehensive professional services, including
continuing medical educational programs, publications, literature searches and
treatment information. These professional services are important because,
historically, new anticancer drugs have provided incremental treatment advances,
but few outright cures. Therefore, physicians rely heavily on peer-reviewed
clinical data in making treatment decisions.
Competition in the sale of generic pharmaceutical products is intense due
to the entry of multiple sources for each product after expiration of patents
and exclusivity grants previously covering such products. Manufacturers of
generic products compete aggressively, primarily on the basis of price. Immunex
currently faces aggressive generic competition from numerous suppliers on
methotrexate injectable and leucovorin calcium, resulting in lower prices and
lower sales. Thiotepa may be subject to generic competition in the future.
SUPPLY
AHP subsidiaries manufacture all the finished dosage forms for the Non-
Biological Oncology Products. Bulk active raw materials for the Non-Biological
Oncology Products are either manufactured by AHP subsidiaries or sourced by AHP
from third party manufacturers. Aminocaproic acid for AMICAR is sourced through
an unaffiliated third party vendor and manufactured by a sole source supplier.
Substantially all the raw materials used to manufacture Immunex's recombinant
protein products are available from multiple sources. Immunex has signed
agreements with an unaffiliated contract manufacturer with respect to
manufacturing scale-up activities and manufacturing of Phase III clinical trial
supplies for TNFR-Fc. Immunex is also negotiating a long term supply agreement
with such contract manufacturer to manufacture commercial quantities of TNFR-Fc.
No assurance can be given that Immunex will be able to execute such a supply
agreement with such contract manufacturer or with any other third party.
Further, no assurance can be given that any contract manufacturer will be able
to successfully manufacture sufficient quantities of TNFR-Fc needed in order to
conduct the additional Phase III clinical trials which the Company plans to
initiate in 1997 or, if ENBREL (TNFR-Fc) receives regulatory approval, will be
able to successfully manufacture sufficient quantities of TNFR-Fc for commercial
supply.
Immunex presently does not have its own fill and finish capabilities for
producing and labeling final drug products from bulk drug substances or bulk
proteins. Immunex relies upon an unaffiliated third party and AHP for the fill
and finish of all drug products marketed by Immunex.
GOVERNMENT REGULATION
The manufacturing and marketing of pharmaceutical products in the U.S.
requires the approval of the FDA under the Food, Drug and Cosmetic Act. Similar
approvals by comparable agencies are required in foreign countries. The FDA has
established mandatory procedures and safety standards which apply to the
clinical testing, manufacture and marketing of pharmaceutical and biotechnology
products. Obtaining FDA approval for a new therapeutic product may take several
years and involve expenditure of substantial resources.
The federal government regulates certain recombinant DNA research activity
through National Institutes of Health ("NIH") guidelines for research involving
recombinant DNA molecules (the "NIH Guidelines"). The Company complies with the
NIH Guidelines which, among other things, restrict or prohibit certain
recombinant DNA experiments and establish levels of biological and physical
containment of recombinant DNA molecules that must be met for various types of
research.
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The Company's operations are also subject to regulation under, among
others, the Occupational Safety and Health Act, the Environmental Protection
Act, the Nuclear Energy and Radiation Control Act, the Toxic Substances Control
Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation, and Liability Act, Title III of the Superfund Amendments
and Reauthorization Act (Community Right-to-Know and Emergency Response Act),
national restrictions on technology transfer, federal regulations on the
protection of human subjects in clinical studies, the protection of animal
welfare in preclinical studies, import, export and customs regulations and other
present or possible future local, state or federal regulation. From time to
time Congressional Committees and federal agencies have indicated an interest in
implementing further regulation of biotechnology and its applications.
PATENTS, LICENSES AND TRADEMARKS
Immunex is committed to developing and protecting its intellectual
property. Patents, trade secrets and other proprietary rights are very
important to the Company. Immunex has filed applications for U.S. and foreign
patents covering numerous aspects of its technology. As of March 1, 1997, the
Company has been granted and maintains 84 U.S. and 234 foreign patents, and
currently has 101 patent applications pending in the U.S. Patent and Trademark
Office (the "USPTO") and 264 applications pending abroad. There can be no
assurance that any of its pending or future applications will result in issued
patents or that the rights granted thereunder will provide competitive advantage
to the Company or its licensees. The Company also relies upon trade secrets,
unpatented proprietary know-how and continuing technological innovation to
develop and maintain its competitive position. There can be no assurance that
others will not acquire or independently develop the same or similar technology,
or that the Company's issued patents will not be circumvented, invalidated or
rendered obsolete by new technology.
Due to unresolved issues regarding the scope of protection provided by
certain of the Company's patents, as well as the possibility of patents being
granted to others, there can be no assurance that the patents owned by or
licensed to the Company and its licensees will provide substantial protection or
commercial benefit. The rapid rate of development and the intense research
efforts throughout the world in biotechnology, the significant time lag between
the filing of a patent application and its review by appropriate authorities and
the lack of significant legal precedent involving biotechnology inventions make
it difficult to predict accurately the breadth or degree of protection that
patents will afford the Company's or its licensees' biotechnology products or
their underlying technology. It is also difficult to predict whether valid
patents will be granted based on biotechnology patent applications or, if such
patents are granted, to predict the nature and scope of the claims of such
patents or the extent to which they may be enforceable.
Under U.S. law, although a patent has a statutory presumption of validity,
the issuance of a patent is not conclusive as to validity or as to the
enforceable scope of its claims. Accordingly, there can be no assurance that
the Company's patents will afford protection against competitors with similar
inventions, nor can there be any assurance that the patents will not be
infringed or designed around by others or that others will not obtain patents
that the Company would need to license or design around.
It is the Company's policy to respect the patent rights of others. Immunex
has obtained licenses from various parties covering certain recombinant DNA
technologies it employs to make its products. The Company, however, may need to
acquire additional licenses in the future if its processes are changed or if
patents are awarded to others which cover current processes. Competitors of
Immunex, including established pharmaceutical and biotechnology companies, are
seeking to obtain patents covering technologies which Immunex may need to
manufacture or market its products. Competitors of Immunex have obtained or are
seeking patents which, if issued or granted, may have a bearing upon the
Company's ability to successfully commercialize GM-CSF and TNFR-Fc.
Immunex has been issued three U.S. patents covering an altered, or analog,
form of GM-CSF, that is marketed by the Company under the LEUKINE trademark.
Immunex and several competitors, however, filed patent applications in 1984
disclosing the isolation of mouse and human GM-CSF DNAs. Two such applications
that were filed before Immunex's application included claims which, if such
patents were issued, would be infringed by Immunex's process for making LEUKINE.
A GM-CSF interference proceeding in the USPTO directed to human GM-CSF DNAs was
declared in July 1990, involving competing U.S. patent applications filed by or
licensed to Immunex, Novartis, Research Corporation, Schering-Plough, Inc.
("Schering") and Biogen. Research Corporation licensed its patent application
to Schering, and Schering and Novartis have cross licensed each other worldwide
under the respective patents and patent applications controlled by them,
although they have not launched a product in the U. S. or Canada. The
applications of Biogen and Schering have been withdrawn from the interference,
and in 1995 the USPTO entered judgment removing the Research Corporation
application from the interference, finding that it could not support a claim to
the DNA molecule encoding human GM-CSF. In February 1997, however, the USPTO
issued a patent to Research Corporation that contains claims devoted to
mammalian GM-CSF DNA, and certain related technologies. The Company is
reviewing the prosecution history of the Research Corporation patent to assess
the validity of the claims that may affect LEUKINE. Proceedings in the
interference have been suspended since 1995 to permit the parties to negotiate a
settlement of the interference, and Novartis and Immunex have discussed the
terms of a proposed settlement. If a settlement cannot be reached and Novartis
were to prevail in the
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interference, litigation may result if Novartis or Schering elects to enforce
any resulting GM-CSF patents in the U.S. Novartis has been granted patents in
Europe and certain other countries covering recombinant GM-CSF technologies that
block the Company or its licensees from commercializing GM-CSF in such
countries. If Immunex were blocked from manufacturing or selling LEUKINE in the
U.S. or a license could not be obtained upon commercially reasonable terms, the
Company would be materially and adversely affected.
ENBREL (TNFR-Fc) is a fusion protein consisting of a dimer of two subunits,
each of which comprises a TNF receptor domain derived from a TNF receptor known
as "p80," fused to a segment derived from a human antibody molecule known as an
"Fc domain." Immunex believes that it was the first to isolate a recombinant
DNA encoding p80 TNFR and also the first to express the protein using
recombinant DNA technology. In March 1995, the Company was granted a U.S.
patent covering DNAs encoding p80 TNFR and was granted a European patent in
December 1995. Two other companies, however, BASF and Yeda Research &
Development Co. ("Yeda"), filed patent applications relating to TNFR proteins
shortly prior to the time Immunex filed its patent applications claiming TNFR
DNAs and proteins. No patents have been issued to Yeda in the U.S. covering
TNFR DNA's or proteins, but two patents have been granted to Yeda by the
European patent office that relate to TNFR technologies. BASF has been granted
a U.S. patent with claims covering certain TNFR proteins that differ in both
structure and function from the fusion protein being tested by Immunex. Immunex
is currently opposing the Yeda European patents and reviewing the U.S. patent to
assess its validity. Roche and Synergen Corporation ("Synergen") filed patent
applications directed to p80 TNFR DNAs after the date Immunex filed its
application. No patents have been issued to Roche or Synergen. If BASF, Roche,
Synergen or Yeda were able to validly assert TNFR patents to cover ENBREL (TNFR-
Fc), the Company's or AHP's commercialization of ENBREL (TNFR-Fc) would be
impeded in any territories in which such patents were in force. In addition, a
U.S. patent was obtained by the Board of Regents of the University of Texas
System ("Texas") that contains claims relating to TNFR-Fc fusions. However, the
Company's TNFR applications disclosing such fusions, as well as other
applications that were filed by other companies after the Company's application
but more than one year prior to the filing date of the Texas patent, were not
considered by the USPTO in its decision to grant a patent to the Texas
applicants. In view of such prior disclosures and publications, the Company has
received the opinion of its patent counsel that the relevant claims of the Texas
patent are invalid. Zymogenetics, Inc. ("Zymogenetics") and Genentech have been
issued U.S. patents having claims directed to various fusion proteins comprising
Fc domains, and have also filed corresponding European applications which have
not yet been granted. The Company is reviewing the claims of these patents in
view of prior art disclosures of Fc fusion proteins and other technical issues
of patent law to ascertain whether the claims of the Zymogenetics or Genentech
patents can be validly asserted to cover ENBREL (TNFR-Fc).
NOVANTRONE (mitoxantrone) is a proprietary product that is covered by
several U.S. and Canadian patents. The product patent covering mitoxantrone in
the U.S. expires in August 1997. A separate U.S. composition patent covering
pharmaceutical formulations containing mitoxantrone does not expire until July
2000. A U.S. patent covering methods of treating leukemia and solid tumors does
not expire until April 2006. AHP holds a manufacturing process patent on
thiotepa in the U.S. and Canada. Although methotrexate is the subject of
certain patents held by AHP, the protection afforded by such patents is not
material.
Wyeth-Ayerst Research and Immunex are pursuing several collaborative
preclinical research areas to discover or develop other new oncology products.
AHP and Immunex intend to pursue all protection of all forms of intellectual
property, including, but not limited to, patents, trade secrets, Orphan Drug
exclusivity, and benefits of the Waxman-Hatch legislation, for all inventions,
discoveries and developments in these areas of research.
Under its agreements with licensors of certain patents, Immunex is
obligated to pay process royalties on sales of products produced using certain
basic recombinant DNA processes and related technologies. Certain licenses, for
example the Cohen-Boyer license covering basic recombinant DNA processes, may be
material to the Company; however, the terms of such licenses extend for the life
of the patents licensed and are subject to cancellation by the licensor only
upon default or bankruptcy by Immunex. In addition, Immunex has agreed to pay
Behringwerke product royalties based on sales of LEUKINE and ENBREL (TNFR-Fc).
Both the process royalties and the product royalties currently payable by the
Company are commensurate in percentage rate to those paid by other companies
developing biotechnology products and are not expected to exceed, in the
aggregate, 10% of net sales. The Company, however, may need to enter into
additional license agreements with other companies concerning LEUKINE, ENBREL
(TNFR-Fc) or other products or processes which may require payment of additional
product royalties. There can be no assurance that such license agreements will
be available or that the total royalties payable under such agreements will not
adversely affect the Company's results of operations with respect to such
products.
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The U.S. and Canadian trademarks for NOVANTRONE and THIOPLEX have been
assigned to Immunex. In addition, the LEDERLE trademark in the U.S. and Canada,
and two other trademarks owned and currently used in Canada by Wyeth-Ayerst
International have been licensed to Immunex for use in connection with current
and future oncology products. AHP has the right to terminate the Lederle
trademark licenses in the event that its ownership of Immunex Common Stock was
to decrease below 50%.
PROPERTIES
In 1986, Immunex purchased for $1.2 million the master lease for the
Immunex Building in Seattle, Washington where its primary laboratory and initial
manufacturing facilities are located. Immunex currently occupies all but a
small percentage of this building. Immunex also leases space in an adjacent
office building that is used for office and administrative purposes. Immunex's
facilities in these two buildings occupy a total of 160,000 square feet. In
1993, the Company signed a lease for 37,000 square feet of additional office
space in a building located near its headquarters. In 1996, the Company signed
a lease for approximately 13,000 square feet of research laboratory space in the
Elliott Park Building, two miles north of the Immunex Building. The total of
current rental payments under these leases was approximately $2.8 million in
1996 and is expected to be approximately $3.4 million in 1997. The master lease
for the Immunex Building extends through August 2000, with three five-year
renewal options. The master lease calls for rental increases at five-year
intervals through the renewal periods. An amendment to the master lease in 1994
reduced the rent with no increases through August 2000. The lease for the
adjacent office building also has no rent increases, expires in August 2000 and
has three five-year renewal options at market value.
In 1988, Immunex began operating a 10,000 square foot fermentation and
pharmaceutical manufacturing facility located in the Immunex Building for the
production of recombinant protein therapeutics. This facility is designed to
comply with FDA Good Manufacturing Practices, and Immunex has received an
establishment license for this facility as a part of the BLA approval applicable
to GM-CSF. This facility can produce sufficient quantities of recombinant
cytokines using yeast and bacterial fermentation technologies to support
clinical testing, and in addition can produce commercially significant
quantities of GM-CSF. In October 1992, Immunex completed the construction of a
manufacturing and development center in Bothell, Washington which includes a
large-scale microbial manufacturing facility and a separate mammalian cell-based
protein manufacturing facility. These facilities are being used to produce
TNFR-Fc for clinical trials; however, such facilities have insufficient capacity
to produce all of the TNFR-Fc required to conduct all of the Phase III studies
of ENBREL (TNFR-Fc) planned for 1997. See "Supply." In 1995, both the
microbial manufacturing facility and the mammalian cell facility were used to
conduct contract manufacturing for other companies. In 1996, the microbial
manufacturing facility was used to conduct contract manufacturing for other
companies.
The Company is currently exploring several alternatives in order to meet
its long-term facility needs. The Company also owns approximately 20 acres of
undeveloped land adjacent to its manufacturing and development center in
Bothell, Washington. Immunex has entered into a purchase and sale agreement
with the Port of Seattle concerning the purchase of a 29 acre parcel of land
located in Seattle, Washington, known as Terminal 88. Pursuant to the terms of
the agreement, Immunex will not be committed to complete the purchase until it
has approved the results of a complete due diligence review of the property and
obtained a master use permit ("MUP") and other governmental authorizations
needed to enable the property to be developed and used in accordance with the
Company's plans. In 1995, the Company filed an application to the City of
Seattle to obtain the MUP required to develop the site. In February 1996, the
Port of Seattle submitted a environmental impact statement to the City of
Seattle. In May 1996, the City of Seattle, Director of the Department of
Construction and Land Use granted a MUP which included a Major Phased
Development approval and special exception for height.
The MUP was appealed by a small group of citizens to the Shoreline Hearings
Examiner. Both hearings have been completed. The Shoreline Hearings Board and
the City Hearing Examiner reaffirmed the decision of the Director of the
Department of Construction and Land Use, granting conditional approval for the
Major Phased Development and special exception for height. The citizens group
has since appealed the Shoreline Hearings Board ruling to the King County
Superior Court. Any decision to close the purchase of Terminal 88 will depend
on the outcome of the lawsuit as well as public funding of the transportation
improvements in the vicinity of Terminal 88.
PERSONNEL
As of December 31, 1996, Immunex and its wholly owned subsidiaries employed
a total of 808 persons, of whom 96 hold doctoral degrees, 387 were engaged in
research and development, 120 in manufacturing and 135 in sales and marketing.
Each employee has entered into a confidentiality agreement which contains
provisions requiring disclosure of ideas, developments, discoveries or
inventions conceived during employment, and assignment to the Company of all
proprietary rights to such matters.
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None of the Company's employees is covered by a collective bargaining
agreement.
The Company's ability to maintain its competitive position will depend, in
part, upon its continued ability to attract and retain qualified scientific and
managerial personnel, and certain key employees. Competition for such personnel
is intense, and there can be no assurance that the Company will be able to
attract and retain such personnel.
RISK FACTORS
The following are among the important factors that could cause results
to differ materially from those in the forward-looking statements contained in
the Company's Annual Report on Form 10-K.
HISTORY OF OPERATING LOSSES AND UNCERTAINTY OF FINANCIAL RESULTS
The Company's revenues to date have consisted of product sales, royalty and
contract revenue, and interest income. Historically, the Company's expenses
have generally exceeded revenues and there can be no assurance that significant
additional losses will not occur in the future or that the Company will be
profitable in the future. The Company had an accumulated deficit as of December
31, 1996 of approximately $464 million. The Company anticipates that its
operating expenses and capital expenditures may increase significantly in the
latter half of 1997 and in subsequent years as it adds the personnel and
facilities associated with advancing products through development, clinical
trials and manufacturing scale-up. The amounts and timing of expenditures will
depend on the progress of ongoing research and development, the results of
preclinical testing and clinical trials, the rate at which operating losses are
incurred, the execution of any development and licensing agreements with
corporate partners, the Company's development of products, the FDA regulatory
process and other factors, many of which are beyond the Company's control.
Incremental costs in the future may include, but are not limited to, those
associated with the Company's own product development, preclinical studies,
clinical trials, manufacturing scale-up, and, subject to completion of certain
conditions, the acquisition of Terminal 88 for the relocation of the Company's
corporate offices and research facilities. Other incremental costs may also
include, but are not limited to, sharing of development expenses with AHP under
various research and development agreements entered into between the Company and
AHP. Although the Company expects its current production facilities to be
suitable for production of sufficient quantities of the Company's products for
early-stage, and, in some cases, late-stage clinical trials of its recombinant
products, such facilities may not be capable of or suitable for producing the
quantity of some of the Company's products necessary for all clinical trials or
commercial sale, including TNFR-Fc. If the Company chooses to establish
additional manufacturing capability, significant capital expenditures would be
required.
The Company expects to incur additional operating losses in 1997. The
ability of the Company to achieve profitability in subsequent years depends,
among other things, on increasing sales of its existing products, successfully
completing product development efforts and obtaining timely regulatory approvals
of its lead clinical products. The development of the Company's products will
require the commitment of substantial resources to conduct the time-consuming
research, preclinical development and clinical trials necessary to bring such
products to market and to establish production capabilities. There can be no
assurance that the Company will generate significant revenues or achieve
profitability.
The Company anticipates that its accumulated cash reserves, together with
AHP's payment obligations to the Company, should be sufficient to fund the
Company's cash requirements through 1998. Beyond 1998, the Company intends to
rely on accumulated cash reserves and cash generated from operations, which will
be highly dependent on the Company's successful development and
commercialization of its clinical products. There can be no assurance that
these products will be successfully developed or commercialized. Further, there
can be no assurance that the underlying assumed levels of revenue and expense
will prove to be accurate.
UNCERTAINTY ASSOCIATED WITH PRECLINICAL AND CLINICAL TESTING
Before obtaining regulatory approvals for the commercial sale of any of the
Company's potential new products, the products will be subjected to extensive
preclinical and clinical testing to demonstrate their safety and efficacy in
humans. Results of initial preclinical and clinical testing of products under
development by the Company are not necessarily indicative of results that will
be obtained from subsequent or more extensive preclinical and clinical testing.
Furthermore, there can be no assurance that clinical trials of products under
development will be completed or will demonstrate the safety and efficacy of
such products at all or to the extent necessary to obtain regulatory approvals.
Companies in the biotechnology industry have suffered significant setbacks in
advanced clinical trials, even after achieving promising results in earlier
trials. The failure to adequately demonstrate the safety and efficacy of a
therapeutic product under development could delay or prevent regulatory approval
of such product.
The rate of completion of clinical trials depends on, among other factors,
the enrollment of patients. Patient accrual is a function of many factors,
including the size of the patient population, the proximity of patients to
clinical sites, the eligibility criteria for the study and the existence of
competitive clinical trials. Delays in planned patient enrollment in the
Company's current clinical trials or future clinical trials may result in
increased costs, program delays or both.
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NO ASSURANCE THAT NEW PRODUCTS WILL BE SUCCESSFULLY DEVELOPED
The Company's realization of its long-term potential will be dependent upon
the successful development and commercialization of products currently under
development. There can be no assurance that these products will be developed
successfully or receive regulatory approval. Furthermore, there can be no
assurance that these products, if developed and approved, can be successfully
manufactured in quantities necessary for commercialization or that such products
will receive market acceptance.
GOVERNMENTAL REGULATION; NO ASSURANCE OF PRODUCT APPROVAL
The FDA and comparable agencies in foreign countries impose substantial
requirements on biotechnology and pharmaceutical companies prior to the
introduction of therapeutic products. These requirements include lengthy and
detailed laboratory and clinical testing procedures, sampling activities and
other costly and time-consuming procedures, together which involve the
expenditure of substantial resources. Satisfaction of these requirements
typically takes a number of years and varies substantially based on the type,
complexity and novelty of the pharmaceutical product. The Company cannot
accurately predict when it might submit product applications or submissions for
FDA or other regulatory review with respect to its products under development.
Governmental regulation also affects the manufacture and marketing of
pharmaceutical products.
Any future FDA or other governmental approval of products developed by the
Company may entail limitations on the indicated uses for which such product may
be marketed. Approved products may be subject to additional testing and
surveillance programs as required by regulatory agencies. In addition, product
approvals may be withdrawn or limited for noncompliance with regulatory
standards or the occurrence of unforeseen problems following initial marketing.
The effect of governmental regulation may be to delay marketing new
products for a considerable period of time, to impose costly requirements on the
Company's activities or to provide a competitive advantage to other companies
that compete with the Company. There can be no assurance that FDA or other
regulatory approval for any future products or for any additional indications
for previously approved products developed by the Company will be granted on a
timely basis, if at all. Adverse clinical results by others could have a
negative impact on the regulatory process and timing. A delay in obtaining or
failure to obtain regulatory approvals could adversely affect the marketing of
the Company's products and the Company's liquidity and capital resources. In
addition, future legislation or administrative action may result in governmental
regulations adverse to the Company. The extent of potentially adverse
governmental regulation that might arise from future legislation or
administrative action cannot be predicted.
The Company is also subject to various federal, state and local laws,
regulations and recommendations relating to safe working conditions, laboratory
and manufacturing practices, the experimental use of animals and the use and
disposal of hazardous or potentially hazardous substances, including radioactive
compounds and infectious disease agents, used in connection with its research
work. See "Government Regulation."
UNCERTAIN AVAILABILITY OF THIRD-PARTY REIMBURSEMENT AND PRODUCT PRICING
The Company's ability to commercialize products successfully will depend
substantially on reimbursement of the costs of such products and related
treatments at acceptable levels from government authorities, private health
insurers and other organizations, such as health maintenance organizations
("HMOs"). To date, efforts to obtain reimbursement in connection with the
Company's marketed products have been largely successful; however, uncertainty
exists, and will continue to exist, as to the reimbursement status of newly
approved healthcare products. There can be no assurance that the extent of
government or third-party reimbursement will permit the Company to realize an
appropriate return on its investment in developing new therapies or, if
available, will not be decreased in the future, or that reimbursement amounts
will not reduce the demand for, or the price of, the Company's products, thereby
adversely affecting its business. As a part of their efforts to control health
care costs, government and other third-party payors have focused on limiting
both coverage and the extent of reimbursement for new therapeutic products. If
adequate coverage and reimbursement levels are not provided by government and
third-party payors for uses of the Company's therapeutic products, the market
acceptance of these products would be adversely affected.
Third-party payors are increasingly challenging the prices charged for
medical products and services. Also, the trend toward managed healthcare in the
U.S. and the concurrent growth of organizations, such as HMOs, which can control
or significantly influence the purchase of healthcare services and products, as
well as legislative proposals to reform healthcare or reduce government
insurance programs, may result in lower prices for therapeutic products. The
cost-containment measures that healthcare providers are instituting, including
practice protocols and guidelines and clinical pathways, and the effect of any
healthcare reform could materially adversely affect the Company's ability to
sell its existing products and to sell additional products if successfully
developed and approved. Moreover, the Company is unable to predict what
additional legislation or regulation, if any, relating to the healthcare
industry or third-party coverage and reimbursement may be enacted in the future
or what effect such legislation or regulation would have on the Company's
business.
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LIMITED MANUFACTURING CAPABILITY
The Company currently operates a 10,000 square foot fermentation and
pharmaceutical manufacturing facility located in the Immunex Building for the
production of recombinant protein therapeutics. This facility can produce
sufficient quantities of recombinant cytokines using yeast and bacterial
fermentation technologies to support clinical testing, and in addition can
produce commercially significant quantities of GM-CSF. In 1992, the Company
completed the construction of a manufacturing and development center in Bothell,
Washington which includes a large-scale microbial manufacturing facility and a
separate mammalian cell-based protein manufacturing facility. These facilities
are being used, among other purposes, to produce TNFR-Fc for clinical trials;
however, such facilities have insufficient capacity to produce sufficient TNFR-
Fc required to conduct all of the Phase III studies of ENBREL (TNFR-Fc) planned
for 1997. In addition, the Company does not currently have sufficient
manufacturing capacity to manufacture its mammalian cell-based protein products
under development in commercial quantities. The Company has signed agreements
with an unaffiliated contract manufacturer with respect to manufacturing scale-
up activities and manufacturing of Phase III clinical trial supplies for TNFR-
Fc. The Company is also negotiating a long term supply agreement with such
contract manufacturer to manufacture commercial quantities of TNFR-Fc. There
can be no assurance that these negotiations will be successfully completed. No
assurance can be given that any contract manufacturer will be able to
successfully manufacture sufficient quantities of TNFR-Fc needed in order to
conduct the additional Phase III clinical trials which the Company plans to
initiate in 1997 or, if ENBREL (TNFR-Fc) receives regulatory approval, will be
able to successfully manufacture sufficient quantities of TNFR-Fc for commercial
supply. There can be no assurance that the Company will be able to acquire such
resources or establish relationships with others to supplement its resources on
a timely basis and on terms acceptable to the Company, if at all.
DEPENDENCE ON OTHERS
AHP subsidiaries manufacture all of the finished dosage forms for the Non-
Biological Oncology Products. Bulk active raw materials for the Non-Biological
Oncology Products are either manufactured by AHP subsidiaries or sourced by AHP
from third-party manufacturers. AHP is dependent on a single supplier for all
of its requirements of the essential raw material for AMICAR. Substantially all
the raw materials used to manufacture the Company's recombinant protein products
are available from multiple sources. The Company also relies upon an
unaffiliated third party and AHP for the fill and finish of all drug products
marketed by the Company. If AHP subsidiaries or third-party manufacturers or
suppliers were to cease production or otherwise fail to supply such materials or
products to AHP or the Company, as the case may be, the Company could experience
a disruption in obtaining these products.
UNCERTAINTY RELATING TO PATENTS AND PROPRIETARY RIGHTS
The Company's ability to compete effectively with others is dependent on
the proprietary nature of the Company's patents and technologies. The Company
has filed a number of patent applications and continues to actively seek patent
protection for its proprietary technology, both in the U.S. and abroad.
Although certain of the applications filed by the Company have resulted in
issued patents, there can be no assurance that the balance of the applications,
or that other applications filed in the future, will result in issued patents.
Further, there can be no assurance that issued patents will not be circumvented
or invalidated. The Company has obtained licenses from various parties covering
technologies it employs to manufacture its products, but there can be no
assurance that additional licenses will not be required, and, if required, that
such licenses will be available to the Company on satisfactory terms, if at all.
Competitors of the Company, including established pharmaceutical and
biotechnology companies, are seeking to obtain patents covering technologies
which the Company may need to manufacture or market its products. Competitors
of the Company have obtained or are seeking patents which, if issued or granted,
may have a material bearing upon the Company's ability to successfully
commercialize GM-CSF and TNFR-Fc.
Because of the length of time and expense associated with bringing new
products through development and the governmental approval process to the
marketplace, the pharmaceutical industry has traditionally placed considerable
importance on obtaining and maintaining patent and trade secret protection for
significant new technologies, products and processes. The Company and other
biotechnology and pharmaceutical firms have applied, and are applying, for
patents for their products and certain aspects of their technologies. The
enforceability of patents issued to biotechnology and pharmaceutical firms is
highly uncertain. Federal court decisions indicating legal considerations
surrounding the validity of patents in the field are in transition, and there
can be no assurance that the historical legal standards surrounding questions of
validity will continue to be applied or that current defenses as to issued
patents in the field will, in fact, be considered substantial in the future. In
addition, there can be no assurance as to the degree and range of protection any
patents will afford, whether patents will issue or the extent to which the
Company will be successful in not infringing patents granted to others.
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While the Company pursues patent protection for products and processes
where appropriate, it also relies on trade secrets, know-how and continuing
technological advancement to develop and maintain its competitive position.
The Company's policy is to have each employee enter into a confidentiality
agreement which contains provisions prohibiting the disclosure of confidential
information to anyone outside the Company, and which also contains provisions
requiring disclosure of ideas, developments, discoveries or inventions conceived
during employment, and assignment to the Company of all proprietary rights to
such matters. Research and development contracts and relationships between the
Company and its scientific consultants provide access to aspects of the
Company's know-how that is protected generally under confidentiality agreements
with the parties involved. There can be no assurance, however, that these
confidentiality agreements will be honored or that the Company can effectively
protect its rights to its unpatented trade secrets. Moreover, there can be no
assurance that others will not independently develop substantially equivalent
proprietary information and techniques or otherwise gain access to the Company's
trade secrets.
The Company may be required to obtain licenses to patents or other
proprietary rights from third parties. There can be no assurance that any
licenses required under any patents or proprietary rights will be made available
on terms acceptable to the Company, if at all. If the Company does not obtain
required licenses, it could encounter delays in product development while it
attempts to redesign products or methods or it could find that the development,
manufacture or sale of products requiring such licenses could be foreclosed.
In addition, the Company could incur substantial costs in defending any
patent litigation brought against it or in asserting the Company's patent
rights, including those licensed to the Company by others, in a suit against
another party. The Company is currently a party to a GM-CSF patent interference
in the USPTO that may affect products it is developing or has developed,
including GM-CSF. In addition, the USPTO could institute interference
proceedings in connection with one or more of the Company's patents or patent
applications, which proceedings could result in an adverse decision as to
priority of an invention. The USPTO also could institute reexamination
proceedings in connection with one or more of the Company's patents or patent
applications, which could result in an adverse decision as to the patent's
validity or scope. See "Patents, Licenses and Trademarks."
TECHNOLOGICAL CHANGE AND COMPETITION
The Company is engaged in fields characterized by extensive research
efforts and rapid technological development. New drug discoveries and
developments in recombinant-DNA technology, rational drug design and other
pharmaceutical processes are expected to continue at a rapid pace in both
industry and academia. The Company is involved in an intensely competitive
field. There are many companies and institutions, both public and private,
including pharmaceutical companies, chemical companies, specialized
biotechnology companies and research, government or academic institutions, that
are engaged in developing synthetic pharmaceuticals and biotechnological
products for human therapeutic applications, including the applications targeted
by the Company.
A number of competitors are conducting research and development in the
areas of cytokines and cytokine receptors, and research by others specifically
addresses areas of technology targeted by the Company. Many of these companies
have substantially more capital, research and development, regulatory,
manufacturing, marketing, human and other resources and experience than the
Company and represent significant long-term competition for the Company. Such
competitors may succeed in developing products that are more effective or less
costly than any developed by, or that may be developed by, the Company and may
also be more successful than the Company in production and marketing. In
addition, other recently developed technologies are, or may in the future be,
the basis for competitive products. There can be no assurance that competitors
will not succeed in developing technologies and products that are more effective
than any being developed by the Company or that would render the Company's
technology and products obsolete or noncompetitive. See "Competition."
POTENTIAL PRODUCT LIABILITY
The testing and marketing of biotechnology and pharmaceutical products
entail an inherent risk of product liability. Such risk exists in human
clinical trials and even with respect to those products that receive regulatory
approval for commercial sale. There can be no assurance that the Company can
avoid significant product liability exposure. The Company currently maintains
product liability insurance coverage which management believes to be adequate,
based on the Company's product portfolio, sales volumes and claims experience to
date. It is intended that the Company will continue such coverage. Such
insurance is expensive and may become unavailable or difficult to obtain in the
future, or available coverage may become more limited. There can be no
assurance that the Company will be able to obtain or maintain such insurance in
the future on acceptable terms or that such insurance will provide adequate
coverage against potential liabilities either for clinical trials or commercial
sales. The Company's business may be adversely affected by successful product
liability claims in excess of its insurance coverage.
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HAZARDOUS MATERIALS; ENVIRONMENTAL MATTERS
The Company's research and development activities involve the controlled
use of hazardous materials, chemicals, viruses and radioactive compounds. The
Company is subject to federal, state and local laws and regulations governing
the use, manufacture, storage, handling and disposal of such materials and
certain waste products. Although the Company believes that its safety
procedures for the handling and disposal of such materials comply with the
standards prescribed by such laws and regulations, the risk of accidental
contamination or injury from these materials cannot be completely eliminated.
In the event of such an accident, the Company could be held liable for any
damages that result and any such liability could exceed the Company's resources.
The Company may be required to incur significant costs to comply with
environmental laws and regulations in the future. The Company's operations,
business or assets may be materially adversely affected by current or future
environmental laws or regulations. See "Government Regulation."
ITEM 2. PROPERTIES
See "Properties" above, under Item 1.
ITEM 3. LEGAL PROCEEDINGS
Immunex is currently a party to a GM-CSF patent interference in the USPTO
that may affect products it is developing or has developed, including GM-CSF.
No assurance can be given as to the outcome of the GM-CSF patent interference or
any other potential interference affecting any other Immunex product, and the
costs of any such potential conflicts may be significant. Immunex may be
materially and adversely affected by a negative outcome of any of these
interferences. See Item 1. "Patents, Licenses and Trademarks."
CISTRON LITIGATION. On November 1, 1996, Immunex and Cistron
Biotechnology, Inc. ("Cistron") agreed to settle all of Cistron's claims against
Immunex and two former officers of Immunex. The settlement was negotiated with
the assistance of U.S. District Court Judge William L. Dwyer, who presided over
the case. This litigation, first filed in September 1993 and consolidated in
the U.S. District Court for the Western District of Washington in Seattle, was
based on claims by Cistron that Immunex and the former officers misappropriated
certain Cistron proprietary information regarding interleukin-1 beta ("IL-1B")
in 1984. Cistron's claims included misappropriation of trade secrets, unfair
competition, breach of contract, and breach of a confidential relationship. The
terms of the settlement include payments by the Company and former officers over
a four-year period totaling $21 million. The first payment, $11 million, was
made in November 1996, to be followed by three successive annual payments of $3
million in November 1997, 1998 and 1999, and a final $1 million payment in
November 2000. Immunex also assigned certain IL-1B patents to Cistron. Under
the terms of the settlement, neither Immunex nor Steven Gillis and Christopher
S. Henney, the former officers, concede or admit any liability or wrongdoing.
The court made no determination of the merits of any allegations and under the
terms of the settlement all claims are dismissed with prejudice. Cistron had
sought damages of $26 to $67 million, plus exemplary damages and attorneys' fees
under Washington law. Immunex is pursuing claims against its director's and
officer's liability insurers for up to $10 million of the amounts to be paid in
the settlement. The insurers have disputed the coverage available under the
applicable policies and there can be no assurance that Immunex will recover the
amounts sought. Immunex has recorded a charge of approximately $18 million to
its 1996 earnings in connection with its obligation under the settlement. The
charge does not reflect any provision for amounts that may be recoverable under
insurance policies.
Immunex is not a party to any other material litigation.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's security holders
during the fourth quarter of its fiscal year ended December 31, 1996.
21
<PAGE>
PART II
ITEM 5. MARKET PRICE OF THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER
MATTERS
The Company's common stock is traded on the Nasdaq National Market under the
symbol IMNX.
The following table sets forth for each period indicated the high and low sales
prices for the Company's common stock as reported on the Nasdaq National Market.
1996 1995
------------------- -----------------
HIGH LOW HIGH LOW
------ ------ ------ ------
1st Quarter 17 15 1/8 18 1/2 13 3/4
2nd Quarter 16 1/2 13 5/8 18 9 3/4
3rd Quarter 14 1/8 11 1/2 17 12 1/4
4th Quarter 19 1/2 12 5/8 17 1/2 11 3/4
There were 1,454 holders of record of the Company's common stock as of December
31, 1996. A significant number of beneficial owners of the Company's common
stock hold their shares in street name.
The Company has not paid any cash dividends since its inception. The Company
currently does not intend to pay any cash dividends in the foreseeable future,
but intends to retain all earnings, if any, for use in its business operations.
ITEM 6. SELECTED FINANCIAL DATA (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
On June 1, 1993, the Company was merged with and into Lederle Oncology
Corporation, a wholly owned subsidiary of American Cyanamid Company. See Item
7, "Management's Discussion and Analysis of Financial Condition" and the notes
to the consolidated financial statements for a description of the merger. The
selected financial data as of and for the years ended December 31, 1996, 1995
and 1994 and the period June 2, 1993 to December 31, 1993, are those of the
Company subsequent to the merger. The selected financial data for the period
January 1, 1993 to June 1, 1993 and as of and for the year ended December 31,
1992 are those of the Company prior to the merger.
<TABLE>
<CAPTION>
Period Period
6/2/93 1/1/93
TO TO
1996 1995 1994 12/31/93 6/1/93 1992
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Revenues $ 151,198 $ 156,616 $ 144,332 $ 95,310 $ 27,556 $ 60,082
Net loss (53,632) (11,300) (33,104) (366,135) (64,167) (77,597)
Net loss per common share (1.35) (.29) (.85) (9.58) (4.17) (5.21)
Total assets 177,787 174,037 192,665 204,118 - 235,790
Long-term debt and obligations,
including current portion 12,071 5,324 50,611 23,450 - 30,224
Shareholders' equity 137,710 136,643 111,927 137,863 - 133,987
</TABLE>
22
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
INTRODUCTION
The following discussion of results of operations, liquidity and capital
resources includes certain forward-looking statements. The words "believes",
"anticipates", "expects" and similar expressions are intended to identify such
forward-looking statements. Such statements are based on current expectations
and are subject to certain risks and uncertainties that could cause actual
results to differ materially from those anticipated by the statements made by
the Company. Certain risk factors have been identified which could affect the
Company's actual results and are described in Item 1 above.
RESULTS OF OPERATIONS
OVERVIEW
The Company incurred a net loss of $53.6 million for the year ended
December 31, 1996, which included a charge of $18.1 million recorded in the
fourth quarter relating to a settlement of litigation between the Company and
Cistron Biotechnology, Inc. ("Cistron"), as discussed below. Excluding this
nonrecurring charge, the Company would have incurred a net loss of $35.5 million
for 1996. For the years ended December 31, 1995 and 1994, the Company incurred
net losses of $11.3 million and $33.1 million, respectively. The Company's
financial performance in 1996 reflect the decisions to invest increased
resources in developmental research opportunities and increased expenditures for
advertising and promotion activities for the Company's existing product line.
REVENUES
Product sales experienced a decline in 1996, totaling $129.5 million,
compared to $137.6 million and $135.8 million in 1995 and 1994, respectively.
Sales of NOVANTRONE-REGISTERED TRADEMARK- (mitoxantrone) were adversely affected
during the first quarter of 1996 by distributor buying patterns late in 1995.
In addition, 1996 sales of leucovorin calcium continued their downward trend due
to intense generic competition. The improvement in product sales in 1995, as
compared to 1994, is attributable to the early 1995 launch of THIOPLEX-
REGISTERED TRADEMARK- (thiotepa for injection) and increased purchases by
distributors of NOVANTRONE over the last several months of the year.
Net sales of LEUKINE-REGISTERED TRADEMARK- (sargramostim) totaled $43.1
million, $41.4 million and $45.6 million in 1996, 1995 and 1994, respectively.
In late 1995, the Company received United States Food and Drug Administration
("FDA") approval to market LEUKINE-REGISTERED TRADEMARK- for treatment of acute
myelogenous leukemia, allogenic bone marrow transplantation and for mobilizing
and post transplantation support of peripheral blood progenitor cells. These
additional indications have contributed to sales growth in the hospital market
during 1996. The market share gains realized in the hospital setting however
have been offset by a decline in the use of LEUKINE in the outpatient area.
Prior to November 1996, LEUKINE was only available in a lyophilized formulation
which requires specialized equipment to mix the product prior to administration.
In November 1996, the FDA approved a multi-dose liquid formulation of LEUKINE
which offers increased convenience for outpatient use. It is uncertain at this
time what the impact of the liquid formulation will be, if any, on future net
sales of LEUKINE. Sales of LEUKINE in 1995 decreased, as compared to 1994, due
to a decline in LEUKINE unit volume. Following the decline, sales returned to
near historical sales levels by the fourth quarter of 1995.
Net sales of NOVANTRONE totaled $36.7 million, $43.0 million and $39.1
million in 1996, 1995 and 1994, respectively. The change in NOVANTRONE sales is
due primarily to distributor purchasing patterns which affected sales levels in
1995 and 1996. During the last quarter of 1995, wholesalers and oncology
distributors increased their purchases of NOVANTRONE above historical purchasing
levels. This was followed by a much lower than anticipated sales level during
the first quarter of 1996. Sales of NOVANTRONE returned to near historical
levels over the remainder of 1996. In November 1996, the Company received FDA
approval to market NOVANTRONE for use, in combination with steroids, for
treatment of patients with pain related to hormone refractory prostate cancer.
Sales of NOVANTRONE are expected to benefit from this recent approval; however,
the impact on sales, cannot be predicted.
In February 1995, the Company launched THIOPLEX, which replaced thiotepa.
Sales of THIOPLEX, which is more stable and has a longer shelf life, increased
to $20.6 million and $20.7 million in 1996 and 1995, respectively, compared to
1994 net sales of thiotepa of $15.4 million. Declining sales volume and selling
prices resulting from generic competition caused net sales of leucovorin calcium
to decrease to $12.1 million in 1996 from $18.4 million and $19.1 million in
1995 and 1994, respectively. The decline was partially mitigated by bulk sales
of leucovorin calcium, totaling $3.7 million, during 1996.
23
<PAGE>
Royalty and contract revenue increased to $21.7 million in 1996, compared
to $19.0 million and $8.5 million in 1995 and 1994, respectively. The Company
has realized an increase in license fee income during each of the years
reported, totaling $10.8 million, $6.6 million and $4.0 million in 1996, 1995
and 1994, respectively. The Company entered into several new license agreements
during the current year, generating license fee income of $4.8 million and has
earned an additional $6.0 million under existing license agreements with
American Home Products Corporation ("AHP"). License fee income in 1995 exceeded
the 1994 level due to a license fee of $2.0 million which was received upon the
signing of an agreement with AHP covering tumor necrosis factor alpha converting
enzymes. The agreement includes quarterly payments of $1.0 million which
commenced in 1996 and continues through 1997. In 1995, the Company initiated a
program to use surplus capacity at its manufacturing development center to
perform contract manufacturing services for certain customers. Beginning in the
second quarter of 1996, the Company has focused much of its manufacturing
resources towards the scale-up and production of ENBREL-TM- (TNFR-Fc), a product
in phase III clinical trials. As a result, resources previously utilized for
contract manufacturing services have not been available and the revenue
recognized from performing these services decreased to $3.3 million in 1996,
compared to $6.4 million in 1995. No related revenue was recognized during
1994. The Company earns royalty income under several technology license
agreements. Royalties earned in 1996, 1995 and 1994 totaled $5.7 million, $5.8
million and $4.4 million, respectively.
OPERATING EXPENSES
Cost of product sales was $21.9 million, or 16.9% of product sales, $24.6
million, or 17.8% of product sales, and $28.2 million, or 20.8% of product
sales, for the years ended December 31, 1996, 1995 and 1994, respectively. The
decrease in the cost of product sales percentage during 1996, as compared to
1995, is due primarily to a decrease in period manufacturing costs charged to
cost of goods sold during the current year and changes in product mix. These
decreases were partially offset by declining profit margins on the Company's
generic products leucovorin calcium and methotrexate. As previously noted,
leucovorin calcium has experienced increased generic competition, resulting in
declining average selling prices and the cost of methotrexate was higher in 1996
than 1995. The cost of product sales percentage decreased in 1995, as compared
to 1994, due to the first quarter 1995 launch of THIOPLEX, a favorable change in
the mix of product sales to include a higher percentage of the Company's
products with relatively lower production costs and a decrease in trademark
royalties incurred on the net sales of certain products. THIOPLEX, which
replaced thiotepa during the first quarter of 1995, has a lower production cost
than thiotepa. In addition, the Company incurs a royalty on the sale of
products that bear the Lederle trademark. In 1994, the Company began the
process of discontinuing the use of the Lederle trademark and as of the end of
1996, all products are sold under the Immunex trademark. Trademark royalties
incurred totaled $0.3 million in 1995 compared to $1.7 million in 1994.
Research and development expenses increased to $96.6 million in 1996
compared to $83.5 million and $77.6 million in 1995 and 1994, respectively. The
increase in each respective year is attributable, in part, to increased
expenditures related to the Company's development research activities, which
includes charges for production of clinical material, manufacturing production
scale-up and the costs of conducting clinical studies. The Company has made
significant investments during the current year in the ENBREL manufacturing
process at the Company's manufacturing development center, as well as with a
contract manufacturer to support both Phase III clinical trials and future
commercial supply. The Company has also been conducting clinical trials with
ENBREL in rheumatoid arthritis and clinical studies of LEUKINE for treatment of
opportunistic infections in patients infected with the human immunodeficiency
virus ("HIV"), trauma patients, neonatal sepsis, and as a vaccine adjuvant.
Expense related to third party collaborative funding agreements, exclusive of
AHP research and development agreements, totaled $1.6 million, $1.1 million and
$1.0 million in 1996, 1995 and 1994, respectively.
During 1996, Immunex and AHP amended their agreements related to research
and development of new oncology products and development of ENBREL. Under the
prior oncology research agreement, Immunex was obligated to contribute $26.1
million in 1996, up to $38.3 million in 1997, and continuing at 50% of the AHP
oncology research and development budget for years after 1997. Under the
revised agreement, effective July 1, 1996, the Company will contribute 50%, up
to a maximum amount of $16 million per year (adjusted annually for inflation
beginning in 1997 ), to support AHP's discovery research in oncology. The
Company has the option to elect which products it will continue to support
during clinical testing. If the Company elects to retain its North American
product rights to any clinical products emerging from certain internal AHP
oncology discovery programs, the Company and AHP will share the related
development costs. Expenses incurred under the superseded and revised
agreements totaled $21.2 million in 1996, compared to $15.8 million and $15.3
million in 1995 and 1994, respectively. The Company intends to re-allocate
funds previously committed under the superseded agreements to later stage
products such as ENBREL, LEUKINE and other clinical candidates.
24
<PAGE>
Immunex and AHP collaborate on various research projects. Under the terms
of research and development agreements, Immunex retains North American marketing
rights and AHP retains marketing rights for territories outside North America.
The companies have established joint project management systems and will share
the costs of developing ENBREL and Flt3-Ligand ("Flt3-L") in North America and
Europe. The prior ENBREL agreement called for AHP to contribute $4 million per
year in the years 1994 through 1997 to support ENBREL development. These
payments discontinued with the revised agreement. AHP's obligation to the
Company for shared development costs totaled $3.9 million in 1996. The
companies are also collaborating in the development of paclitaxel in certain
territories. Immunex's share of these costs was $3.1 million and $2.4 million
in 1996 and 1995, respectively.
Selling, general and administrative expense totaled $70.0 million, $59.3
million and $67.7 million in 1996, 1995 and 1994, respectively. In an effort to
stimulate sales growth, the Company invested substantial resources in selling
and marketing activities during 1996. This spending is intended to capitalize
on recent label and formulation approvals for both LEUKINE and NOVANTRONE. In
addition, the Company has incurred increased recruiting, relocation and training
costs related to substantial turnover of its field sales personnel. The Company
believes the turnover is attributed, in part, to recruiting efforts of other
companies that coincided with a period of uncertainty following AHP's November
1995 offer to buy all outstanding shares of the Company's common stock. The
Company has also increased its investment in information technology during 1996
and overhead costs for depreciation, rent and facilities operation have also
increased. The Company was able to realize a substantial reduction in selling,
general and administrative expense levels in 1995 due largely to expense
reduction programs implemented in 1994. These programs included staffing
reductions across the organization and scaling back or eliminating certain
programs. In addition, in 1995, the Company eliminated, or brought in-house,
virtually all of the services provided by AHP under a transitional services
agreement. Costs incurred under this agreement totaled $1.0 million in 1995 and
$6.8 million in 1994. The savings realized in 1995 were, to a certain extent,
offset by transition costs and ongoing support costs associated with bringing
these services in-house.
The fluctuations in selling, general and administrative spending levels
during each of the years presented are due in part to certain events which the
Company considers infrequent in nature and not related to regular operations.
In November 1996, the Company agreed to settle ongoing litigation with Cistron.
Legal defense costs related to the litigation in 1996, 1995 and 1994 totaled
$4.7 million, $3.7 million and $1.2 million, respectively. In the third quarter
of 1996, severance payments under an employment agreement totaling approximately
$1.0 million were made to a former executive officer of the Company. Following
AHP's November 1995 offer to purchase all outstanding shares of the Company's
common stock, the Company incurred costs related to the adoption of certain
employee retention programs, investment banking, legal and other fees of
approximately $1.5 million and $2.2 million in 1996 and 1995, respectively.
Selling, general and administrative expenses in 1994 also include a charge of
$1.7 million to cover severance and termination benefits related to staffing
reductions made across the organization.
OTHER INCOME (EXPENSE)
In 1996, interest income increased to $2.2 million from $1.1 million in
1995 and $0.9 million in 1994 and interest expense decreased to $0.3 million
from $1.1 million in 1995 and $2.5 million in 1994. Following the receipt of
$35.8 million from AHP in March 1995, as settlement of the 1994 revenue
shortfall obligation, the Company paid the $34.0 million outstanding balance on
its loan with AHP and made the final $10.6 million payment on a construction
loan. No additional borrowings have been made since that time. In March 1996,
the Company received $45.3 million from AHP as settlement of the 1995 revenue
shortfall obligation. As a result, the Company's average cash balance has
increased during each of the years 1996, 1995 and 1994, resulting in increased
interest income during each successive year. At the same time, interest expense
has decreased over the same three year period due to the repayment of
outstanding borrowings during 1995.
Beginning in September 1993, the Company became involved in litigation with
Cistron concerning claims by Cistron that the Company and two former officers
had misappropriated information regarding interleukin-1 beta ("IL-1 beta") and
that such information was used by the Company in patent applications relating to
IL-1 beta. In November 1996, the parties agreed to settle all of Cistron's
claims against the Company and two former officers. In accordance with the
terms of the settlement, the Company and two former officers will pay Cistron
$21 million over a four year period. The first payment, $11 million, was made
in November 1996 which will be followed by three successive annual payments of
$3 million in November 1997, 1998 and 1999, and a final $1 million payment in
November 2000. The Company recorded a charge of $18.1 million to other expense
which represents the discounted value of the Company's obligation under the
settlement.
25
<PAGE>
PROVISION FOR INCOME TAXES
The Company's provision for income tax consists of the tax obligation of
the Company's operations in Puerto Rico and income taxes incurred in the states
in which the Company sells its products. In 1994, in order to reduce current
taxes, the Company dissolved two of its subsidiaries, including its Puerto Rico
subsidiary. As a result, the provision for income taxes decreased to $0.2
million for the years ended December 31, 1996 and 1995, compared to $2.0 million
for the year ended December 31, 1994. At December 31, 1996, the Company had a
net operating tax loss carryforward of approximately $240 million. The
provision for income taxes is not expected to be significant in 1997.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents totaled $23.9 million and $20.4 million at
December 31, 1996 and 1995, respectively. During 1996, the Company utilized its
cash reserves to fund operating activities and investments in property, plant
and equipment. Operating activities used cash of $43.0 million during the year,
reflecting an increase in the net loss, payments on outstanding liabilities,
insurance prepayments and prepayments under the AHP research agreement.
During the year ended December 31, 1996, the Company invested $4.7 million
in plant and equipment, which has been and is expected to be a maintenance level
of capital expenditures. In addition, the Company is currently evaluating
certain property in the vicinity of its corporate headquarters for possible
development and relocation of its corporate offices and research facilities.
The Company has entered into a purchase and sale agreement for the property
which expires in late 1997 and has completed initial environmental impact and
other studies. Subject to completion of certain conditions, the Company will be
obligated to complete the purchase of the property. If the Company moves
forward with this project, expenditures for land and related closing costs are
expected to total approximately $15 million.
Financing activities provided $52.4 million during 1996. In March 1996,
the Company received $45.3 million from AHP as payment of its 1995 revenue
shortfall obligation. AHP is required to make payments to the Company if
revenues from certain products do not meet established annual amounts ("Revenue
Guaranty"). The Company has recorded a receivable from AHP of $56.0 million
related to the 1996 Revenue Guaranty, which was received in February 1997.
AHP's obligation ceases after 1997. The maximum amount payable with respect to
1997 is $60.0 million which would be paid during the first quarter of 1998. In
addition, the Company deferred $7.7 million of the settlement with Cistron,
discussed above.
The Company expects to continue to utilize its cash reserves and the
payments under the AHP Revenue Guaranty to fund operations and capital
expenditures in 1997. In addition, the Company is evaluating its long-term
commercial manufacturing requirements with respect to certain products currently
under development. Addressing these needs, either through construction of
internal manufacturing capacity or outsourcing to a third party, will place
additional demands on the Company's available cash. The Company expects to
receive its final payment under the AHP Revenue Guaranty in March 1998. Beyond
1998, the Company intends to rely on accumulated cash reserves and cash
generated from operations which will be highly dependent on the Company's
successful development and commercialization of its products and technology.
There can be no assurance that these products will be successfully developed or
commercialized.
OUTLOOK
The Company believes that it has promising opportunities with respect to
its existing product line and clinical development programs. The ability to
capitalize on these opportunities will require the Company to invest substantial
resources in clinical and developmental research. As a result, the Company
expects to incur additional losses in 1997. The ability of the Company to
achieve profitability in subsequent years depends, among other things, on
increasing sales for its existing products, successfully completing product
development efforts and obtaining timely regulatory approvals of its lead
clinical products.
The Company received label expansions for three indications with respect to
LEUKINE in late 1995 and received FDA approval to market a multi-dose liquid
dosage form of LEUKINE in late 1996. Additionally, in November 1996, the
Company received FDA approval to market NOVANTRONE for use, in combination with
steroids, for treatment of patients with pain related to hormone refractory
prostate cancer. The Company has implemented new marketing strategies in
connection with the LEUKINE and NOVANTRONE approvals that are intended to
increase product sales. However, there can be no assurance that such strategies
will be effective. The Company is also conducting numerous clinical studies of
LEUKINE in the treatment of infections in immune compromised patients, trauma
patients, neonatal sepsis and vaccine adjuvancy. The majority of these trials
are expected to be completed by late 1997.
26
<PAGE>
A portion of the Company's revenues will continue to be derived from
existing license and royalty agreements. The Company may enter into additional
agreements to license its technology patent rights. The timing of such
agreements, if any, and revenue recognized cannot be predicted. Certain
resources previously used to perform contract manufacturing services are
currently being used for the scale-up and production of ENBREL and other
products under development. Because the Company intends to employ its
manufacturing resources to develop, process and make its own products, it does
not expect to enter into additional revenue generating contract manufacturing
agreements.
In 1997, the Company will be conducting numerous clinical studies including
Phase III studies for LEUKINE and ENBREL and initiating Phase II studies for
Flt3-L. In addition, the Company expects to initiate clinical studies on
additional clinical candidates in 1997. Further development of ENBREL and other
products in development will require substantial additional investment to cover
the cost of clinical trials and commercial scale manufacturing capability.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Page in
Form 10-K
---------
Consolidated Balance Sheets at December 31, 1996 and 1995. 28
Consolidated Statements of Operations for the years ended
December 31, 1996, 1995 and 1994. 29
Consolidated Statements of Shareholders' Equity for the years
ended December 31, 1996, 1995 and 1994. 30
Consolidated Statements of Cash Flows for the years ended
December 31, 1996, 1995 and 1994. 31
Notes to Consolidated Financial Statements for the years ended
December 31, 1996, 1995 and 1994. 32 - 41
Report of Ernst & Young LLP, Independent Auditors. 42
27
<PAGE>
IMMUNEX CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
December 31,
1996 1995
---------- ---------
ASSETS
Current assets:
Cash and cash equivalents $ 23,861 $ 20,437
Accounts receivable - trade, net 15,675 17,499
Accounts receivable - related parties 2,401 1,792
Accounts receivable - other 352 1,406
Inventories 8,893 8,302
Prepaid expenses 3,222 806
Other current assets 207 173
---------- ---------
Total current assets 54,611 50,415
Property, plant and equipment, net 80,021 87,540
Other assets:
Property held for future development, net 5,687 5,670
Investment in common stock 11,759 2,812
Intangible product rights, net 7,700 8,477
Goodwill, net 13,239 15,295
Patent costs and other, net 4,770 3,828
---------- ---------
$ 177,787 $ 174,037
---------- ---------
---------- ---------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 20,579 $ 18,887
Accounts payable - related parties 1,726 2,773
Accrued compensation and related items 4,858 8,397
Current portion of long-term obligations 3,491 715
Other current liabilities 843 2,013
---------- ---------
Total current liabilities 31,497 32,785
Long-term obligations 8,580 4,609
Commitments and contingencies
Shareholders' equity:
Preferred stock, $.01 par value, 5,000,000
shares authorized, none outstanding - -
Common stock, $.01 par value, 100,000,000
shares authorized, 39,602,225 and 39,601,899
outstanding at December 31, 1996 and 1995,
respectively 648,475 592,470
Guaranty payment receivable from AHP (56,000) (45,288)
Unrealized gain on investment 9,406 -
Accumulated deficit (464,171) (410,539)
---------- ---------
Total shareholders' equity 137,710 136,643
---------- ---------
$ 177,787 $ 174,037
---------- ---------
---------- ---------
See accompanying notes.
28
<PAGE>
IMMUNEX CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Year ended December 31,
1996 1995 1994
--------- --------- ---------
<S> <C> <C> <C>
Revenues:
Product sales $ 129,528 $ 137,639 $ 135,795
Royalty and contract revenue 21,670 18,977 8,537
--------- --------- ---------
151,198 156,616 144,332
Operating expenses:
Cost of product sales 21,860 24,555 28,180
Research and development 96,612 83,463 77,553
Selling, general and administrative 69,968 59,318 67,729
--------- --------- ---------
188,440 167,336 173,462
--------- --------- ---------
Operating loss (37,242) (10,720) (29,130)
Other income (expense):
Interest income 2,156 1,123 925
Interest expense (293) (1,145) (2,528)
Other income (expense), net (Note 10) (18,093) (312) (413)
--------- --------- ---------
(16,230) (334) (2,016)
--------- --------- ---------
Loss before income taxes (53,472) (11,054) (31,146)
Provision for income taxes 160 246 1,958
--------- --------- ---------
Net loss $ (53,632) $ (11,300) $ (33,104)
--------- --------- ---------
--------- --------- ---------
Net loss per common share $ (1.35) $ (0.29) $ (0.85)
--------- --------- ---------
--------- --------- ---------
Number of shares used for per share amounts 39,602 39,590 39,170
--------- --------- ---------
--------- --------- ---------
</TABLE>
See accompanying notes.
29
<PAGE>
IMMUNEX CORPORATION
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(In thousands, except share data)
<TABLE>
<CAPTION>
Guaranty
Payment Unrealized
Common Stock Receivable Gain (Loss) Accumu-
$.01 Par Value from on lated
Shares Amount AHP Investment Deficit Total
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1994 38,719,507 $ 511,371 $ (7,373) $ - $ (366,135) $ 137,863
Issuance of common stock upon
the redemption of warrants 729,692 - - - - -
Guaranty payment received
from AHP - - 7,416 - - 7,416
Guaranty payment receivable
from AHP - 35,811 (35,811) - - -
Unrealized loss on investments - - - (248) - (248)
Net loss for the year ended
December 31, 1994 - - - - (33,104) (33,104)
---------- ---------- ---------- ---------- ---------- ----------
Balance, December 31, 1994 39,449,199 547,182 (35,768) (248) (399,239) 111,927
---------- ---------- ---------- ---------- ---------- ----------
Issuance of common stock upon
the redemption of warrants 152,700 - - - - -
Guaranty payment received
from AHP - - 35,768 - - 35,768
Guaranty payment receivable
from AHP - 45,288 (45,288) - - -
Unrealized gain on investments - - 248 - 248
Net loss for the year ended
December 31, 1995 - - - - (11,300) (11,300)
---------- ---------- ---------- ---------- ---------- ----------
Balance, December 31, 1995 39,601,899 592,470 (45,288) - (410,539) 136,643
---------- ---------- ---------- ---------- ---------- ----------
Issuance of common stock upon
the exercise of stock options 326 5 - - - 5
Guaranty payment received
from AHP - - 45,288 - - 45,288
Guaranty payment receivable
from AHP - 56,000 (56,000) - - -
Unrealized gain on investment - - - 9,406 - 9,406
Net loss for the year ended
December 31, 1996 - - - - (53,632) (53,632)
---------- ---------- ---------- ---------- ---------- ----------
Balance, December 31, 1996 39,602,225 $ 648,475 $ (56,000) $ 9,406 $ (464,171) $ 137,710
---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ----------
</TABLE>
See accompanying notes.
30
<PAGE>
IMMUNEX CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Year ended December 31,
1996 1995 1994
---------- ---------- ----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss $ (53,632) $ (11,300) $ (33,104)
Adjustments to reconcile net loss to net
cash provided by (used in) operating activities:
Depreciation and amortization 15,157 15,901 14,559
Equity in loss of affiliate - 514 974
Cash flow impact of changes to:
Trade and other receivables 2,269 (2,438) 5,855
Inventories (591) 3,423 1,462
Other current assets (1,990) 1,747 (1,387)
Accounts payable, accrued
compensation and other current liabilities (4,262) 3,551 (4,094)
---------- ---------- ----------
Net cash provided by (used in) operating activities (43,049) 11,398 (15,735)
Cash flows from investing activities:
Purchases of property, plant and equipment (4,656) (5,246) (7,791)
Proceeds from sales and maturities of marketable securities - 9,897 4,076
Purchases of marketable securities - - (3,917)
Proceeds from sale of properties - - 12,045
Patent costs and other (1,255) (567) (1,411)
---------- ---------- ----------
Net cash provided by (used in) investing activities (5,911) 4,084 3,002
Cash flows from financing activities:
Guaranty payment received from AHP 45,288 35,768 7,416
AHP line of credit - (34,000) 24,000
Construction loan payments - (10,600) (4,800)
Principal payments under capitalized lease obligations - (574) (1,612)
Deferred portion of settlement obligation 7,703 - -
Other (607) (457) (421)
---------- ---------- ----------
Net cash provided by (used in) financing activities 52,384 (9,863) 24,583
---------- ---------- ----------
Net increase in cash and cash equivalents 3,424 5,619 11,850
Cash and cash equivalents, beginning of period 20,437 14,818 2,968
---------- ---------- ----------
Cash and cash equivalents, end of period $ 23,861 $ 20,437 $ 14,818
---------- ---------- ----------
---------- ---------- ----------
</TABLE>
See accompanying notes.
31
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. ORGANIZATION AND BASIS OF PRESENTATION
Immunex Corporation (the "Company") is a biopharmaceutical company that
discovers, develops, manufactures and markets human therapeutic products to
treat cancer, infectious diseases and immunological disorders.
The Company operates in a highly regulated and competitive environment. The
manufacturing and marketing of pharmaceutical products requires approval from
and is subject to ongoing oversight by the Food and Drug Administration in the
United States and by comparable agencies in other countries. Obtaining approval
for a new therapeutic product is never certain and may take several years and
involve expenditure of substantial resources. Competition in researching,
developing and marketing pharmaceutical products is intense. Any of the
technologies covering the Company's existing products or products under
development could become obsolete or diminished in value by discoveries and
developments of other organizations.
The Company's market for pharmaceutical products is the United States, Canada
and Puerto Rico. The Company has arrangements with Wyeth-Ayerst Canada, Inc.
and Wyeth-Ayerst Laboratories Puerto Rico, Inc. for distribution and sale of its
pharmaceutical products in Canada and Puerto Rico, respectively. Products are
sold primarily to wholesalers, oncology distributors, clinics and hospitals in
the United States.
The financial statements are prepared in conformity with generally accepted
accounting principles which require management estimates and assumptions that
affect the amounts reported on the financial statements and accompanying notes.
Actual results could differ from those estimates.
On June 1, 1993, the shareholders of predecessor Immunex Corporation (the
"Predecessor") approved an agreement pursuant to which the Predecessor was
merged (the "Merger") with a subsidiary of American Cyanamid Company
("Cyanamid"), creating the Company. Cyanamid received that number of shares
equal to 53.5% of the Company's common stock outstanding on a fully diluted
basis, immediately following the Merger. Shareholders of the Predecessor
exchanged their shares for an equal number of shares of the Company.
In November 1994, all of the outstanding shares of common stock of Cyanamid were
acquired by American Home Products Corporation ("AHP"). AHP and certain of its
divisions or affiliates assumed the rights and obligations of Cyanamid under the
various agreements that the Company and Cyanamid entered into at the time of the
Merger or thereafter. As a result, AHP now holds a majority interest in
Immunex. All references to AHP include AHP and its various affiliates,
divisions and subsidiaries, including Cyanamid.
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated in consolidation.
CASH EQUIVALENTS
Cash equivalents consist principally of deposits in money market accounts
available on demand or securities with purchased maturities of 90 days or less.
32
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED
INVENTORIES
Inventories are stated at the lower of cost, using a weighted-average method, or
market. The components of inventories at December 31, 1996 and 1995 are as
follows (in thousands):
1996 1995
---------- ----------
Raw materials $ 2,453 $ 1,295
Work in process 2,689 3,947
Finished goods 3,751 3,060
---------- ----------
$ 8,893 $ 8,302
---------- ----------
---------- ----------
DEPRECIATION AND AMORTIZATION
Depreciation of buildings, equipment and capital leases is calculated using the
straight-line method over the estimated useful lives of the related assets which
range from 3 to 31.5 years. Leasehold improvements are amortized on a straight-
line basis over the lesser of the estimated useful life or the term of the
lease. The costs of acquiring leasehold interests are amortized over the
remaining term of the lease.
PROPERTY HELD FOR FUTURE DEVELOPMENT
The Company owns certain properties intended for the possible future expansion
of its manufacturing facilities which are recorded at cost.
INVESTMENT IN COMMON STOCK
The Company has an investment in Targeted Genetics Corporation ("TGC"), a
biotechnology company engaged in developing a broad base of gene and cell based
therapy technology, initially focused on treatments for cystic fibrosis, cancer
and infectious diseases. In June 1996, TGC completed an offering of common
stock and issued additional shares of common stock pursuant to a merger. The
issuance of the additional shares of stock reduced Immunex's ownership interest
from approximately 21 percent to approximately 13 percent. As a result of the
decrease in ownership percentage, Immunex was required to change from the equity
method of accounting for its investment in TGC to the provisions of Statement of
Financial Accounting Standards no. 115, "Accounting for Certain Investments in
Debt and Equity Securities." The Company's investment in TGC is considered
available-for-sale. Accordingly, the investment in TGC is recorded at market
value and the related unrealized gain of $9.4 million is reflected as a
component of shareholders' equity on the Company's balance sheet. Prior to the
dilution of Immunex's ownership interest in TGC, the Company recorded its share
of the net losses of TGC to the extent its cash investment exceeded its interest
in the net tangible assets of TGC. The Company recorded equity losses of
$514,000 and $974,000 as other expense for the years ended December 31, 1995 and
1994, respectively.
GOODWILL AND OTHER INTANGIBLE ASSETS
Goodwill is being amortized using the straight-line method over a 10-year
period. Accumulated amortization at December 31, 1996 and 1995 totaled
$7,327,000 and $5,271,000, respectively.
Intangible product rights are amortized using the straight-line method over
their estimated useful lives ranging from 11 to 15 years. Accumulated
amortization at December 31, 1996 and 1995 totaled $2,783,000 and $2,006,000,
respectively.
The Company seeks patent protection on processes and products in various
countries. Patent application costs are capitalized and amortized over their
estimated useful lives, not exceeding 17 years, on a straight-line basis from
the date the related patents are issued. Accumulated amortization at December
31, 1996 and 1995 totaled $338,000 and $210,000, respectively.
33
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED
REVENUES
Product sales are recognized when product is shipped. The Company performs
ongoing credit evaluations of its customers and does not require collateral.
Product sales are recorded net of reserves for estimated chargebacks, returns,
discounts, Medicaid rebates and administrative fees. The Company maintains
reserves at a level which management believes is sufficient to cover estimated
future requirements. Allowances for discounts, returns and bad debts, which are
netted against accounts receivable, totaled $7,181,000 and $6,276,000 at
December 31, 1996 and 1995, respectively. Reserves for chargebacks, Medicaid
rebates and administrative fees are included in accounts payable and totaled
$7,580,000 and $9,303,000 at December 31, 1996 and 1995, respectively.
Revenues received under royalty, licensing and contract manufacturing agreements
are recognized based on the terms of the underlying contractual agreements.
Expenses related to the performance of contract manufacturing are included in
research and development expense.
STOCK OPTION PLAN
The Company adopted Statement of Financial Accounting Standards No. 123,
"Accounting for Stock-Based Compensation" on January 1, 1996. The Company
elected the disclosure-only provisions of Statement No. 123. Accordingly, since
all options are granted at fair market value, no compensation cost is recognized
for options issued under the plan (see Note 6).
NET LOSS PER COMMON SHARE
Net loss per common share is calculated by dividing net loss by the weighted
average number of common shares and dilutive common stock equivalents
outstanding.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
The Company adopted Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of" on January 1, 1996. Adoption of Statement No. 121 had no impact
on the Company.
NOTE 3. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment, at cost, consist of the following at December 31,
1996 and 1995 (in thousands):
1996 1995
---------- ----------
Land $ 2,140 $ 2,140
Buildings and improvements 49,698 49,352
Equipment 46,779 42,747
Leasehold improvements 19,442 19,327
---------- ----------
118,059 113,566
Less accumulated depreciation and
amortization (38,038) (26,026)
---------- ----------
Net property, plant and equipment $ 80,021 $ 87,540
---------- ----------
---------- ----------
Equipment, principally laboratory and office equipment, included $1,001,000,
under capitalized lease arrangements and related accumulated amortization of
$856,000 at December 31, 1995. All remaining capital lease obligations were
paid during the year ended December 31, 1996.
34
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 4. LONG-TERM OBLIGATIONS
Long-term obligations consist of the following at December 31, 1996 and 1995 (in
thousands):
<TABLE>
<CAPTION>
1996 1995
---------- ----------
<S> <C> <C>
Deferred state sales tax on manufacturing facility,
due in annual installments from 1997 to 2000 $ 3,092 $ 3,442
Deferred portion of Cistron settlement obligation 7,703 -
Termination benefits payable to a former officer 915 1,125
Capitalized lease obligations - 150
Other 361 607
---------- ----------
12,071 5,324
Less current portion (3,491) (715)
---------- ----------
$ 8,580 $ 4,609
---------- ----------
---------- ----------
</TABLE>
In November 1996, the Company settled litigation with Cistron Biotechnology,
Inc. ("Cistron") (see Note 10). In accordance with the terms of the settlement,
a payment was made at the time of the settlement which will be followed by four
successive annual payments. The deferred payments have been discounted using a
rate of 7%.
In 1993, the Board of Directors elected to award termination benefits to a
former Chief Executive Officer who retired from the Predecessor. Benefits are
payable over approximately 20 years in varying amounts and have been discounted
using a rate of 7%.
Scheduled annual maturities of long-term obligations in 1998 through 2001 are as
follows: $3,134,000, $3,149,000, $1,486,000 and $30,000, respectively.
Interest paid on all borrowings was $1,226,000, and $2,515,000, for the years
ended December 31, 1995 and 1994, respectively. There was no interest paid on
borrowings in 1996.
NOTE 5. FAIR VALUES OF FINANCIAL INSTRUMENTS
At December 31, 1996 and 1995, the Company had several categories of financial
instruments. With the exception of the deferred state sales tax, the balance
sheet carrying value for all categories of financial instruments approximates
fair value at December 31, 1996 and 1995. The fair value of the deferred state
sales tax on the Company's manufacturing facility was estimated by discounting
future cash flows using the Company's current estimated incremental borrowing
rate. At December 31, 1996 and 1995, the fair value of the deferred state sales
tax was $2,524,000 and $2,685,000, respectively, compared to a balance sheet
carrying value of $3,092,000.
NOTE 6. SHAREHOLDERS' EQUITY
STOCK OPTIONS
The Company has a stock option plan (the "Plan") which provides for the issuance
of incentive and non-qualified stock options to employees and officers. There
have been 6,225,267 shares of common stock reserved for the Plan. Options are
granted by a committee of the Company's Board of Directors. Under policy of the
Company, options are not granted at less than the fair market value of the
Company's common stock at the date of grant. Each outstanding option has a term
of ten years from the date of grant and, depending on the option, becomes
exercisable at a rate of 20% or 33% per year beginning one year from the date of
grant.
The Company has a stock option plan for nonemployee directors which provides
each independent director a one-time grant of an option to purchase 10,000
shares of common stock on the day such director is initially elected or
appointed to the Board of Directors. Each option is granted at fair market
value of the Company's common stock at the date of grant. Each outstanding
option has a term of ten years from the date of grant and becomes exercisable at
a rate of 20% per year beginning one year from the date of grant.
35
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 6. SHAREHOLDERS' EQUITY, CONTINUED
The Company has adopted the disclosure-only provisions of Statement of Financial
Accounting Standards No. 123 "Accounting for Stock-Based Compensation."
Accordingly, since all options are granted at fair market value, no compensation
cost has been recognized for options issued under the Plan. Had compensation
cost been recognized based on the estimated fair value at the date of grant for
options awarded under the Plan, the pro forma amounts of the Company's net loss
and net loss per share for the years ended December 31, 1996 and 1995 would have
been as follows (in thousands, except per share amounts):
1996 1995
---------- ----------
Net loss - as reported $ (53,632) $ (11,300)
Net loss - pro forma (55,336) (11,843)
Net loss per common share - as reported $ (1.35) $ (0.29)
Net loss per common share - pro forma (1.40) (0.30)
The estimated fair value of each option grant was calculated using the Black-
Scholes option pricing model with the following weighted average assumptions:
risk-free interest rates of 6.24% to 7.61%; expected option life of 6 years;
expected volatility of 45%; and no expected dividends. The weighted-average
fair value of options granted during the years 1996 and 1995 was $8.33 and
$8.08, respectively. The effect of applying Statement No. 123 for providing
pro-forma disclosures for 1996 and 1995 is not likely to be representative of
the effects in future years because it does not take into consideration proforma
compensation expense related to grants made prior to 1995.
Information with respect to the Plan follows:
<TABLE>
<CAPTION>
Weighted-
Shares Subject Option Average
to Option Price Range Exercise Price
-------------- ---------------- --------------
<S> <C> <C> <C>
Options outstanding balance at December 31, 1994 830,990 $ 11.75 - 31.50 $ 27.72
Granted 445,725 12.25 - 15.00 14.82
Canceled (191,345) 11.75 - 31.50 25.32
--------- ---------------- --------
Options outstanding balance at December 31, 1995 1,085,370 $ 11.75 - 31.50 $ 22.85
--------- ---------------- --------
--------- ---------------- --------
Granted 1,216,000 12.44 - 15.88 15.79
Exercised (326) 11.75 - 15.00 14.00
Canceled (228,480) 11.75 - 31.50 21.53
--------- ---------------- --------
Options outstanding balance at December 31, 1996 2,072,564 $ 11.75 - 31.50 $ 18.85
--------- ---------------- --------
--------- ---------------- --------
Shares available for future grants at December 31, 1996 4,152,377
---------
---------
</TABLE>
The following table summarizes information about options outstanding at
December 31, 1996:
<TABLE>
<CAPTION>
Outstanding Exercisable
Weighted- ----------------------------------- ------------------------------
Average Weighted- Weighted-
Range of Remaining Average Average
Exercise Prices Contractual Life Options Exercise Price Options Exercise Price
- ---------------- ---------------- ------------ -------------- --------- --------------
<S> <C> <C> <C> <C> <C>
$ 11.75 - 17.50 9 years 1,562,534 $ 15.46 136,760 $ 14.65
18.88 - 31.50 7 years 510,030 29.24 292,330 29.83
- ---------------- ------------ ----------- --------- --------------
$ 11.75 - 31.50 2,072,564 $ 18.85 429,090 $ 24.99
- ---------------- ------------ ----------- --------- --------------
- ---------------- ------------ ----------- --------- --------------
</TABLE>
36
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 6. SHAREHOLDERS' EQUITY, CONTINUED
GUARANTY PAYMENTS RECEIVABLE FROM AHP
AHP is required to make payments or contribute products to the Company if
revenues from certain marketed products do not achieve established levels
("Expected Revenues") through December 31, 1997. The revenue shortfall
obligation is limited to a maximum amount in each year ("Maximum Guaranty
Obligation"). Such payments are treated as additional contributions to the
capital of the Company.
AHP's Maximum Guaranty Obligation and the Expected Revenue for the year ending
December 31, 1997 is $60.0 million and $216.5 million, respectively. The
Company recorded a receivable from AHP of $56.0 million, $45.3 million and $35.8
million for the revenue shortfall for the years ended December 31, 1996, 1995
and 1994, respectively.
NOTE 7. INCOME TAXES
The Company's deferred tax assets consist primarily of the benefit to be derived
from unused net operating tax loss carryforwards of approximately $240 million
and carryforwards of approximately $12 million for research and experimental
credits at December 31, 1996. The carryforwards expire from 1997 through 2011.
Net operating tax loss carryforwards and research and experimental credits of
$1,100,000 and $143,000, respectively, expired in 1996. Due to the uncertainty
regarding the Company's ability to generate taxable income in the future to
realize the benefit from its net deferred tax assets at December 31, 1996 and
1995, a valuation allowance of $96.6 million and $79.3 million, respectively,
has been recognized for financial reporting purposes to offset the excess of the
Company's deferred tax assets over its deferred tax liabilities. This
represents an increase in the valuation allowance of $14.0 million and $4.1
million for the years ended December 31, 1996 and 1995, respectively. In the
event the Company is able to utilize its net operating tax loss carryforwards,
the carryforwards would be used to first reduce the unamortized balance of
goodwill, followed by the unamortized balance of intangible product rights and,
lastly, federal income tax expense.
The significant components of the Company's deferred tax assets and liabilities
at December 31, 1996 and 1995 are as follows (in thousands):
1996 1995
----------- ----------
Deferred tax assets:
Net operating loss carryforwards $ 83,688 $ 70,049
Research and experimental credits 12,012 11,538
In-process research and development 1,248 1,519
Accounts receivable allowances 2,513 2,196
Accrued liabilities 1,311 1,317
Accrued litigation 2,696 -
Other 1,713 1,918
----------- ----------
Total deferred tax assets 105,181 88,537
Valuation allowance for deferred tax assets (96,628) (79,261)
----------- ----------
Net deferred tax assets 8,553 9,276
Deferred tax liabilities:
Tax over book depreciation 3,394 3,989
Purchase accounting adjustments 3,230 3,767
Other 1,929 1,520
----------- ----------
Total deferred tax liabilities 8,553 9,276
----------- ----------
$ - $ -
----------- ----------
----------- ----------
37
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 7. INCOME TAXES, CONTINUED
The provision for income taxes consist of the following (in thousands):
Year Ended December 31,
1996 1995 1994
-------- -------- -----------
Foreign $ - $ - $ 1,616
State 160 246 342
-------- -------- -----------
$ 160 $ 246 $ 1,958
-------- -------- -----------
-------- -------- -----------
The entire provision for the period is current. Income taxes paid during the
years ended December 31, 1996, 1995 and 1994, totaled $148,000, $1,289,000 and
$1,347,000 respectively.
Reconciliation of the U.S. federal tax rate to the Company's effective tax rate
is as follows:
Year Ended December 31,
1996 1995 1994
------- ------- -------
U.S. federal statutory tax rate (35.0)% (35.0)% (35.0)%
Non-deductible amortization of goodwill 1.4 6.5 2.3
Non-deductible merger expense - - (4.1)
Increase in valuation reserve 32.5 36.6 50.5
Foreign taxes - - 5.2
State taxes 0.3 2.4 1.1
Foreign income subject to different rates - (6.8) (6.5)
Tax benefit from research and development
expenses and credits (0.9) (5.3) (7.4)
Other 2.0 3.8 0.2
------- ------- -------
Effective tax rate 0.3% 2.2% 6.3%
------- ------ ------
------- ------ ------
NOTE 8. EMPLOYEE BENEFITS
As a retirement vehicle, the Company has a defined contribution plan covering
all full-time salaried employees. The plan is a salary deferral arrangement
pursuant to Internal Revenue Code section 401(k) and is subject to the
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA").
The Company matches 100% of the first 2% of an employee's deferred salary and
50% of the next 4% of an employee's deferred salary. Employees with five or
more years of service receive a match of 100% of the first 2% of deferred salary
and 75% of the next 4% of deferred salary. The matching contributions to the
plan were $1,707,000, $1,370,000, and $1,656,000, for the years ended December
31, 1996, 1995 and 1994, respectively.
NOTE 9. RELATED PARTY TRANSACTIONS
On June 1, 1993, the Predecessor merged with a subsidiary of Cyanamid, forming
the Company. In November 1994, all of the outstanding shares of common stock of
Cyanamid were acquired by AHP. AHP, its subsidiaries and affiliates have
assumed the rights and obligations of Cyanamid under various agreements entered
into at the time of the Merger or thereafter. Underlying the Merger are
numerous agreements under which, among other things, Immunex and AHP collaborate
in research and development, manufacture clinical materials, manufacture and
distribute marketed products and provide certain services. Significant
transactions under these agreements are summarized below.
REVENUE GUARANTY
AHP is required to make payments or contribute products to Immunex, if revenues
from certain marketed products do not achieve established levels through
December 31, 1997 (see Note 6). At December 31, 1996 and 1995, Immunex had
recorded a receivable from AHP of $56,000,000 and $45,288,000 related to the
revenue shortfall for the years ended December 31, 1996 and 1995, respectively.
38
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 9. RELATED PARTY TRANSACTIONS, CONTINUED
RESEARCH AND DEVELOPMENT
Immunex and AHP are parties to research and development agreements, under which
the parties cooperate to research, develop and commercialize new products.
Under the terms of these agreements, certain of which were revised in 1996,
Immunex is obligated to support AHP's oncology discovery research programs.
Each party, upon notification, may elect which products it will continue to
support during clinical testing and receive an exclusive license to sell and
market in its territory, the products resulting from the research and
development programs encompassed by these agreements. If the election to
continue support is made, Immunex and AHP share equally the development costs
for the North American and European markets. For the years ended December 31,
1996, 1995 and 1994, Immunex paid $21,156,000, $15,800,000 and $15,300,000,
respectively, to support AHP's oncology research programs. Immunex's funding
obligation for discovery research in 1997 and subsequent years is 50% of AHP's
oncology discovery research expenditures, up to a maximum of $16,000,000 per
year, adjusted annually for inflation beginning in 1997. AHP's obligation for
shared development costs totaled $3,923,000 for the year ended December 31,
1996.
In order to retain the international rights to ENBREL-TM- ("TNFR-Fc"), AHP paid
Immunex $2,000,000, $4,000,000 and $4,000,000 during the years ended December
31, 1996, 1995 and 1994, respectively. This agreement was superseded during
1996 by the revised research agreements, discussed above.
ONCOLOGY PRODUCT LICENSE AGREEMENTS
Immunex and AHP are parties to certain oncology product license agreements under
which AHP and its sub-licensees have a license to sell certain existing oncology
products outside North America. AHP is entitled to a royalty bearing license
outside North America to any products resulting from Immunex's oncology research
and development activities ("New Oncology Products"). Royalties earned by
Immunex for the years ended December 31, 1996, 1995 and 1994, totaled
$2,379,000, $2,546,000 and $2,571,000, respectively.
In the event that a New Oncology Product is to be manufactured by Immunex for
AHP or by AHP for Immunex, the manufacturing party will supply such product at a
price that will reimburse the manufacturing party for its manufacturing, process
development and overhead costs allocable to such product, plus a reasonable
profit. Immunex recognized revenue under this agreement of $1,645,000, $651,000
and $327,000 for the years ended December 31, 1996, 1995 and 1994, respectively.
Under the terms of a subsequent related agreement, the Company incurred costs of
$3,081,000 and $2,434,000 for the years ended December 31, 1996 and 1995,
respectively.
TACE AGREEMENTS
In December 1995, Immunex licensed exclusive worldwide rights to tumor necrosis
factor alpha converting enzyme ("TACE") technology to AHP. Immunex received a
license fee of $2,000,000 upon signing of the agreement and received $4,000,000
in 1996. The TACE agreements also include milestone payments and royalties on
future product sales. Under the agreements, AHP will be responsible for
developing inhibitors of TACE.
SUPPLY AND MANUFACTURING
Immunex and AHP are parties to a supply agreement and toll manufacturing
agreement under which AHP manufactures and supplies the reasonable commercial
requirements of certain oncology products at a price equal to 125% of AHP's or
its subsidiaries' manufacturing costs. Immunex and AHP also have a methotrexate
distributorship agreement whereby AHP agreed to supply methotrexate at certain
established prices which are adjusted annually. Immunex and its subsidiaries
purchased $9,657,000 and $9,536,000 of inventory from AHP and its subsidiaries
under these agreements during the years ended December 31, 1996 and 1995,
respectively. In addition, AHP billed Immunex $686,000, $659,000 and $677,000
for other expenses for the years ended December 31, 1996, 1995 and 1994,
respectively.
DISTRIBUTION
Immunex and Wyeth-Ayerst Canada, Inc. ("Wyeth-Ayerst Canada"), a wholly owned
subsidiary of AHP, are parties to a distributorship agreement under which Wyeth-
Ayerst Canada distributes certain oncology products in Canada. Immunex supplies
the oncology products to Wyeth-Ayerst Canada at certain established prices which
are subject to annual adjustment. Immunex sold $1,511,000, $1,631,000 and
$1,894,000 of inventory to Wyeth-Ayerst Canada during the years ended December
31, 1996, 1995 and 1994, respectively.
39
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 9. RELATED PARTY TRANSACTIONS, CONTINUED
Immunex agreed to supply the commercial requirements of Immunex products to
Wyeth-Ayerst Laboratories Puerto Rico, Inc., a wholly owned subsidiary of AHP.
Net revenue recognized under this agreement for the year ended December 31, 1996
totaled $446,000.
TRADEMARK LICENSE AGREEMENT
Immunex and AHP are parties to a trademark license agreement under which Immunex
received the right to use certain trademarks relating to oncology products.
Immunex pays a royalty of 2% of net sales of the products sold under these
trademarks. Royalty expense for the years ended December 31, 1996, 1995 and
1994, was $18,000, $267,000 and $1,702,000, respectively.
SERVICES AGREEMENT
Immunex and AHP are parties to a transitionary services agreement under which
AHP agreed to provide, among other things, marketing, customer service,
distribution, and credit and collections services related to certain contributed
products. In 1995, nearly all the services provided under this agreement were
terminated. Immunex incurred costs under this agreement totaling $80,000,
$968,000 and $6,759,000 for the years ended December 31, 1996, 1995 and 1994,
respectively. In 1994 AHP also incurred certain additional expenses totaling
$893,000 not included in the service fees, for which Immunex agreed to directly
reimburse AHP.
NOTE 10. COMMITMENTS AND CONTINGENCIES
The Company leases office and laboratory facilities under certain noncancelable
operating leases which expire through August 2000. These leases provide the
Company with options to renew the leases at fair market rentals through August
2015. A summary of minimum future rental commitments under noncancelable
operating leases at December 31, 1996 follows (in thousands):
Year Ended December 31, Operating Leases
- ----------------------- ----------------
1997 $ 3,395
1998 2,871
1999 2,696
2000 1,938
----------------
Total minimum lease payments $ 10,900
----------------
----------------
Rental expense on operating leases was $2,781,000, $2,704,000 and $2,572,000 for
the years ended December 31, 1996, 1995 and 1994, respectively.
In September 1993, Cistron filed suit against Immunex based on claims that
Immunex and two former officers had misappropriated information regarding
interleukin-1 beta ("IL-1 beta"). Cistron's claims included misappropriation of
trade secrets, unfair competition, breach of contract and breach of a
confidential relationship. In November 1996, Immunex and Cistron agreed to
settle all of Cistron's claims against Immunex and two former officers of
Immunex. The settlement was made without admission of liability on the part of
any party. In accordance with the terms of the settlement, the defendants will
pay Cistron $21 million over a four year period. The first payment, $11
million, was made in November 1996, to be followed by three successive annual
payments of $3 million in November 1997, 1998 and 1999, and a final $1 million
payment in November 2000. Immunex recorded a charge of $18.1 million to its
1996 earnings as other expense, representing the discounted value of its
obligations under the settlement. Amounts due under this settlement are
recorded as long-term obligations (see Note 4). Immunex also assigned certain
IL-1 beta patents to Cistron. Immunex is pursuing claims against its director's
and officer's liability insurers for up to $10 million of the settlement. The
insurers have disputed the coverage available under the applicable policies and
there can be no assurance that Immunex will recover the amounts sought. The
charge does not reflect any amounts that may be recoverable under insurance
policies.
40
<PAGE>
IMMUNEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 10. COMMITMENTS AND CONTINGENCIES, CONTINUED
The Company is a party to a patent interference proceeding directed to human GM-
CSF DNAs. If a patent were to be granted to Novartis AG, the remaining party to
the proceeding, the Company might be sued for patent infringement in a lawsuit
seeking damages, royalties, or an injunction barring the Company from making,
using or selling LEUKINE. The proceeding is currently suspended pending
completion of settlement discussion. Other parties are seeking, or have
received, patents that could interfere with the Company's ability to
commercialize tumor necrosis factor receptor. The outcome of these unresolved
patent situations is uncertain. A negative outcome of any of these conflicts
could have a material and adverse impact on the Company's future product sales.
The Company has entered into a purchase and sale agreement for certain property
in the vicinity of its corporate headquarters. The closing date under the
agreement is December 1997 and the cost of the property is approximately
$15,000,000.
In accordance with a 1992 settlement agreement with Hoechst Roussel
Pharmaceuticals, Inc. ("HRPI"), a payment of $2.0 million will be made to HRPI
if the Company receives an expanded label indication for LEUKINE for treatment
of chemotherapy-induced neutropenia.
The Company has certain agreements to fund third-party research. Commitments
under these agreements are estimated at $4.1 million and $1.6 million in 1997
and 1998, respectively.
Various license agreements exist which require the Company to pay royalties
based on a percentage of sales of products manufactured using licensed
technology or sold under license. Royalty costs incurred under these agreements
are included in cost of product sales and totaled $6,136,000, $5,844,000 and
$6,194,000 for the years ended December 31, 1996, 1995 and 1994, respectively.
Certain of these agreements contain minimum annual royalty provisions which
range from $10,000 to $3,750,000 per year in 1997 and from $10,000 to $3,500,000
in 1998 and beyond.
41
<PAGE>
Report of Ernst & Young LLP, Independent Auditors
Shareholders and Board of Directors
Immunex Corporation
We have audited the accompanying consolidated balance sheets of Immunex
Corporation as of December 31, 1996 and 1995, and the related consolidated
statements of operations, shareholders' equity, and cash flows for each of the
three years in the period ended December 31, 1996. Our audits also included the
financial statement schedule listed in the Index at Item 14(a). These financial
statements and schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of Immunex
Corporation as of December 31, 1996 and 1995, and the consolidated results of
its operations and its cash flows for the each of the three years in the period
ended December 31, 1996, in conformity with generally accepted accounting
principles. Also, in our opinion the related financial statement schedule, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
Ernst & Young, LLP
Seattle, Washington
January 17, 1997
42
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item is incorporated by reference from the
section labeled "Election of Directors" and "Executive Officers" in the
Company's definitive Proxy Statement for the annual meeting to be held on April
30, 1997.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is incorporated by reference from the
section labeled "Executive Compensation" in the Company's definitive Proxy
Statement for the annual meeting to be held on April 30, 1997.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item is incorporated by reference from the
sections labeled "Principal Holders of Voting Securities" in the Company's
definitive Proxy Statement for the annual meeting to be held on April 30, 1997.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is incorporated by reference from the
sections labeled "Relationship with American Home Products Corporation and
American Cyanamid" in the Company's definitive Proxy Statement for the annual
meeting to be held on April 30, 1997.
43
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this Form 10-K:
1. FINANCIAL STATEMENTS. The following Financial Statements are included
in Part II, Item 8:
Page in
Form 10-K
---------
Consolidated Balance Sheets at December 31, 1996 and 1995. 28
Consolidated Statements of Operations for the years ended
December 31, 1996, 1995 and 1994. 29
Consolidated Statements of Shareholders' Equity for the
years ended December 31, 1996, 1995 and 1994. 30
Consolidated Statements of Cash Flows for the years ended
December 31, 1996, 1995 and 1994. 31
Notes to Consolidated Financial Statements for the years
ended December 31, 1996, 1995 and 1994. 32 - 41
Report of Ernst and Young LLP, Independent Auditors. 42
2. FINANCIAL STATEMENT SCHEDULE. The following schedule supporting the
foregoing Financial Statements for the years ended December 31, 1996,
1995 and 1994 is filed as part of this Form 10-K:
Page in
Form 10-K
---------
II - Valuation and Qualifying Accounts 49
All other schedules are omitted because they are not applicable, or
not required, or because the required information is included in the
consolidated financial statements or notes thereto.
44
<PAGE>
3. EXHIBITS
Exhibit
Number Description
------- -----------
3.1 Certificate of Incorporation, as filed with the Secretary
of State of Washington on April 14, 1994. (Exhibit 3.1) (E)
3.2 Amended and Restated Bylaws. (Exhibit 3.4) (C)
10.1 Real Estate Purchase and Sale Agreement by and between
Cornerstone-Columbia Development Company ("CCDC") and
the Company dated November 12, 1986; Master Lease, dated
as of August 20, 1981 between OTR, an Ohio General
Partnership, and CCDC; Assignment of Master Lease
between CCDC and the Company dated December 17, 1986;
Consent to Assignment of Master Lease from OTR to CCDC,
the Company and Weyerhaeuser Real Estate Company, dated
December 8, 1986. (Exhibit 10.22) (A)
10.2 Amendment to Master Lease dated May 1, 1994, between the
Company and Watumull Enterprises, LTD. (Exhibit 10.2) (E)
10.3 Amended and Restated Lease Agreement dated December 21,
1994, between the Company and the Central Life Assurance
Company. (Exhibit 10.3) (E)
10.4 Amended and Restated Agreement and Plan of Merger, dated
as of December 15, 1992, among the Company, American
Cyanamid Company, Lederle Parenterals, Inc. and Lederle
Oncology Corporation. (Exhibit 2.1) (C)
10.5 Amended and Restated Governance Agreement, dated as of
December 15, 1992, among the Company, American Cyanamid
Company and Lederle Oncology Corporation. (Exhibit 2.2) (C)
*10.6 Settlement Agreement, dated as of July 22, 1992, among
the Company, Hoechst-Roussel Pharmaceuticals Inc. and
Behringwerke AG. (Exhibit 10.13) (B)
10.7 Lease Agreement between the Company and Second and
Seneca Limited Partnership dated as of December 24,
1992. 50-73
10.8 Oncology Product License Agreement between the Company
and American Cyanamid Company dated as of June 1, 1993.
(Exhibit 10.2) (D)
10.9 Immunex New Oncology Product License Agreement between
the Company and American Cyanamid Company dated as of
June 1, 1993. (Exhibit 10.3) (D)
10.11 United States Royalty-Bearing Trademark License
Agreement between the Company and American Cyanamid
Company dated as of June 1, 1993. (Exhibit 10.5) (D)
*10.12 Toll Manufacturing Agreement between Immunex Carolina
Corporation, a wholly owned subsidiary of the Company,
and Lederle Parenterals, Inc. dated as of June 1, 1993.
(Exhibit 10.6) (D)
*10.13 Supply Agreement between the Company and American
Cyanamid Company dated as of June 1, 1993.
(Exhibit 10.7) (D)
**10.14 Separation Agreement between the Company and Stephen
A. Duzan dated as of May 26, 1993. (Exhibit 10.8) (D)
10.15 Agreement between the Company and American Home Products
dated as of September 23, 1994. (Exhibit 10.24) (E)
**10.16 Form of Employment Agreement, together with schedule of
actual agreements. (Exhibit 10.24) (F)
10.17 Real Estate Purchase and Sale Agreement between the
Company and the Port of Seattle dated as of July 18,
1994. 74-93
45
<PAGE>
10.18 Research Agreement between the Company, the Wyeth-Ayerst
Research division of American Home Products Corporation
and the Lederle Pharmaceutical division of American
Cyanamid Company dated as of July 1, 1996. (Exhibit 10.1) (G)
10.19 TNFR License and Development Agreement between the Company
and the Wyeth-Ayerst Laboratories division of American Home
Products Corporation dated as of July 1, 1996.
(Exhibit 10.2) (G)
10.20 Amendment No. 1 to Immunex New Oncology Product License
Agreement between the Company and American Cyanamid Company
dated as of July 1, 1996. (Exhibit 10.3) (G)
10.21 Sublease Agreement between the Company and PathoGenesis
Corporation dated as of December 1, 1996. 94-108
10.22 Third Amendment to Real Estate Purchase and Sale
Agreement between the Company and the Port of Seattle
dates as of January 31, 1997. 109-110
10.23 Amended and Restated 1993 Stock Option Plan. 111-117
10.24 Amended and Restated Director Stock Option Plan. 118-121
21.1 Subsidiaries of the Registrant. 122
23.1 Consent of Independent Auditors. 123
24.1 Power of Attorney. 124-129
27.1 Financial Data Schedule. 130
- ------------------------------------
* Confidential treatment granted as to certain portions.
** Executive compensation plan or arrangement.
(A) Incorporated by reference to designated exhibit included with the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1986.
(B) Incorporated by reference to designated exhibit included with the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1992.
(C) Incorporated by reference to designated exhibit included in the
Registration Statement on Form S-4 (SEC File No. 33-60254) filed by
Lederle Oncology Corporation March 18, 1993.
(D) Incorporated by reference to designated exhibit included with the
Company's Current Report on Form 8-K dated June 4, 1993.
(E) Incorporated by reference to designated exhibit included with the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
(F) Incorporated by reference to designated exhibit included with the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(G) Incorporated by reference to designated exhibit included with the
Company's Current Report on Form 8-K dated July 1, 1996.
(b) REPORTS ON FORM 8-K.
Not applicable.
46
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 of the Securities Exchange Act of
1934, the registrant has duly caused this Annual Report to be signed on its
behalf by the undersigned, thereunto duly authorized.
IMMUNEX CORPORATION
- -------------------
REGISTRANT
By: /s/ Douglas G. Southern March 13, 1997
----------------------------------------------
Douglas G. Southern
Senior Vice President, Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated:
/s/ Edward V. Fritzky March 13, 1997
--------------------------------------------------
Edward V. Fritzky
Chief Executive Officer, Chairman of the Board
and Director
(Principal Executive Officer)
/s/ Douglas E. Williams March 13, 1997
--------------------------------------------------
Douglas E. Williams
Sr. Vice President-Discovery Research and Director
/s/ Peggy V. Phillips March 13, 1997
--------------------------------------------------
Peggy V. Phillips
Sr. Vice President-Pharmaceutical Development
and Director
/s/ Douglas G. Southern March 13, 1997
--------------------------------------------------
Douglas G. Southern
Senior Vice President, Chief Financial Officer
and Treasurer
(Principal Financial and Accounting Officer)
Joseph J. Carr* March 13, 1997
--------------------------------------------------
Joseph J. Carr
Director
Kirby L. Cramer* March 13, 1997
--------------------------------------------------
Kirby L. Cramer
Director
Robert A. Essner* March 13, 1997
--------------------------------------------------
Robert A. Essner
Director
Richard L. Jackson* March 13, 1997
--------------------------------------------------
Richard L. Jackson
Director
John E. Lyons* March 13, 1997
--------------------------------------------------
John E. Lyons
Director
Edith W. Martin* March 13, 1997
--------------------------------------------------
Edith W. Martin
Director
47
<PAGE>
*By: /s/ Douglas G. Southern March 13, 1997
--------------------------------------------------
Douglas G. Southern
Attorney-in-Fact
48
<PAGE>
SCHEDULE II
IMMUNEX CORPORATION
VALUATION AND QUALIFYING ACCOUNTS
Years ended December 31, 1996, 1995 and 1994
(in thousands)
<TABLE>
<CAPTION>
Balance at Additions Charged to Balance at
Beginning of Period Product Sales Deductions End of Period
------------------- -------------------- ---------- -------------
<S> <C> <C> <C> <C>
Year ended December 31, 1994:
Reserve for discounts, returns
and bad debts $ 6,934 $ 11,215 $ 11,613 $ 6,536
------------ ---------- ---------- ---------
------------ ---------- ---------- ---------
Reserve for chargebacks and
Medicaid rebates $ 6,572 $ 39,583 $ 40,333 $ 5,822
------------ ---------- ---------- ---------
------------ ---------- ---------- ---------
Year ended December 31, 1995:
Reserve for discounts, returns
and bad debts $ 6,536 $ 10,323 $ 10,583 $ 6,276
------------ ---------- ---------- ---------
------------ ---------- ---------- ---------
Reserve for chargebacks, Medicaid rebates
and administrative fees $ 5,822 $ 38,571 $ 35,090 $ 9,303
------------ ---------- ---------- ---------
------------ ---------- ---------- ---------
Year ended December 31, 1996:
Reserve for discounts, returns
and bad debts $ 6,276 $ 11,358 $ 10,453 $ 7,181
------------ ---------- ---------- ---------
------------ ---------- ---------- ---------
Reserve for chargebacks, Medicaid rebates
and administrative fees $ 9,303 $ 38,608 $ 40,331 $ 7,580
------------ ---------- ---------- ---------
------------ ---------- ---------- ---------
</TABLE>
49
<PAGE>
Exhibit 10.7
SECOND & SENECA BUILDING
SEATTLE, WASHINGTON 98101
LEASE AGREEMENT
BETWEEN
SECOND AND SENECA LIMITED PARTNERSHIP,
a Washington Limited Partnership
LANDLORD
and
IMMUNEX CORPORATION
TENANT
50
<PAGE>
TABLE OF CONTENTS
Section
NO. TITLE OF SECTION AND SUBHEADINGS:
1. LEASE DATA AND EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(c) Rentable Area of the Premises . . . . . . . . . . . . . . . . . . 1
(d) Basic Plans Delivery Date . . . . . . . . . . . . . . . . . . . . 1
(e) commencement Date . . . . . . . . . . . . . . . . . . . . . . . . 1
(f) Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . 1
(g) Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(h) Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . 1
(i) Parking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(h) Notice Addresses . . . . . . . . . . . . . . . . . . . . . . . . . 1
(k) Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. COMMENCEMENT AND EXPIRATION DATES 2
(a) Commencement Date. . . . . . . . . . . . . . . . . . . . . . . . . 2
(b) Tenant Obligations . . . . . . . . . . . . . . . . . . . . . . . . 2
(c) Tenet Termination Rights . . . . . . . . . . . . . . . . . . . . . 2
(d) Expiration Date. . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. ACCEPTANCE OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . 2
5. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
51
<PAGE>
6. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. PARKING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8. USES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9. SERVICES AND Utilities . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Standard Services. . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Interruption of Services . . . . . . . . . . . . . . . . . . . . . 4
(c) Additional Services. . . . . . . . . . . . . . . . . . . . . . . . 4
10. COSTS OF OPERATIONS AND REAL ESTATE TAXES. . . . . . . . . . . . . . . 4
(a) Additional Rent. . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Estimated Costs . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) Actual Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(e) Records and Adjustments . . . . . . . . . . . . . . . . . . . . . 5
(f) Personal Property Taxes . . . . . . . . . . . . . . . . . . . . . 5
11. CARE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
12. ACCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13. DAMAGE OR DESTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) Damage and Repair . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) Destruction During Last Year of Term . . . . . . . . . . . . . . . 6
(c) Tenant Improvements . . . . . . . . . . . . . . . . . . . . . . . 6
14. WAIVER OF SUBROGATION. . . . . . . . . . . . . . . . . . . . . . . . . 6
15. INDEMNIFICAllON. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
16. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Tenant's Insurance . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Insurance PoGq Requirements . . . . . . . . . . . . . . . . . . . 7
17. ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . . . . . . . 7
(a) Assignment or Sublease . . . . . . . . . . . . . . . . . . . . . . 7
(b) Assignment Obligations . . . . . . . . . . . . . . . . . . . . . . 8
(c) Sublessee Obligations. . . . . . . . . . . . . . . . . . . . . . . 8
18. SIGNS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
19. LIENS AND INSOLVENCY . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) Irisolvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
20. DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Tenant's Right to Cure . . . . . . . . . . . . . . . . . . . . . . 9
(c) Abandonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(d) Landlord's Re-entry. . . . . . . . . . . . . . . . . . . . . . . . 9
(e) Reletting the Premises . . . . . . . . . . . . . . . . . . . . . . 9
(f) Nonpayment of Additional Rent. . . . . . . . . . . . . . . . . . . 10
21. PRIORlTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
52
<PAGE>
22. SURRENDER OF POSSESSION. . . . . . . . . . . . . . . . . . . . . . . . 10
23. REMOVAL OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . 10
24. NON-WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
25. HOLDOVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
26. CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Entire Taking. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Partial Taking . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Awards and Damages . . . . . . . . . . . . . . . . . . . . . . . . 11
27. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
28. COSTS AND ATTORNEYS FEES . . . . . . . . . . . . . . . . . . . . . . . 11
29. LANDLORD'S LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 11
30. LANDLORD'S CONSENT . . . . . . . . . . . . . . . . . . . . . . . . . . 11
31. ESTOPPEL CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . 11
32. TRANSFER OF LANDLORD'S INTEREST. . . . . . . . . . . . . . . . . . . . 12
33. RIGHT TO PERFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
34. QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
35. GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(a) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(b) Heirs and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 12
(c) No Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(d) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(f) Overdue Payments . . . . . . . . . . . . . . . . . . . . . . . . . 12
(g) Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(h) Right to Change Public Spaces . . . . . . . . . . . . . . . . . . 13
(i) Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(j) Building Directory . . . . . . . . . . . . . . . . . . . . . . . . 13
(k) Building Name . . . . . . . . . . . . . . . . . . . . . . . . . . 13
53
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LEASE AGREEMENT
Second & Seneca Building
THIS LEASE made this 24th day of December, 1992, between SECOND AND SENECA
LIMITED PARTNERSHIP, a Washington limited partnership ("Landlord"), and IMMUNEX
CORPORATION a Delaware corporation ("Tenant").
As parties hereto, Landlord and Tenant agree:
1. LEASE DATA AND Exhibit: The following terms as used herein shall have
the meanings provided in this Section L unless otherwise specifically modified
by provisions of this Lease:
(a) Building: Located on the real property descabed in Section 2 hereof, with an
address of 1191 Second Avenue, Seattle Washington 98101.
(b) PREMLSES: Corsisting of the area on the TENTH (10TH) AND ELEVENTH (llth)
floor(s) of the Buildmg, as outGned on the floor plan(s) attached hereto as
Exhibit A, including tenant improvements, ff any, as descr bed in Exhibit B.
(c) RENTABLE AREA OR THE PREMLSES: 3 6, 7 51 net rentable square feet.
(d) BASLC PLAN DELIVENR DATE: N/A
FINAL PLAN DELIVERY DATE: N/A
(e) COMMENCEMENT DATE: April l, 1993,or such earlier date as provided in
Section 3 hereof for the initial premises, See Exhibit C, Section 4.
(f) EXPIRITION DATE: For the entire Premises. the day preceding the 5th
anniversary of the Commencement Date.
(g) Rent See exhibit C, Section 1
Tenant has deposited with the Landlord on the date hereof $24,657.33 to be
applied to the first Rent payment due hereunder.
(h) SECURITY DEPOSIT: N/A
(i) PARKING See Exhibit C, Section 2
(j) NOTICES AND PAVMENTS ADDRESSES:
Landlord Second and Seneca limited Partnership
Suite 2000, 1201 Third Avenue
Seattle, Washington 98101
Attn: Tina Davis, Property Manager
Fax: 206 223-8791
Tenant: Immunex Corporation
51 Universitv Street
Seattle, Washington 98101
Attn: Susan Erb
Fax: 206 233-0644
(k) Exhlblts: The following exhibits or riders are made a part of this Lease:
Exlubit A - Fioor Plan of Premues
Exhibit B - Tenant Improvements
Exhibit C - Addendum to Lease Agreement
Exhibit D - Janitorial Specif ication
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2. PREMISES: Landlord does hereby lease to Tenant, and Tenant does hereby lease
from Landlord, upon the terms and conditions herein set forth, the Premises
described in Section l(b) hereof as shown on Exhibit A hereto, together with
rights of ingress and egress over common areas in the Building located on the
land ( Land.) more particularly described as: Lots 1 through 8, inclusive,
Blocl: 13, Addition to the Town of Seattle as laid our on the claims of C.D.
Boren and AA. Denny and H.L. Yesler (commonly known as C D Boren's Addition to
the Ciq of Seattle), according to the plat thereof recorded in Volume I of Pla4
page 25, in King County, Washington; EXCEPT the sounhwesterly 9 feet of said
Lots 1, 4, 5 and 8 condemned for the widening of Furst Avenue in Distria Court
Cause Number 709Z as provided for bv City of Seattle Ordinance Number 1129, AND
EXCEPT the northeasterly 12 feet of s~ud Lots Z 3, 6 and 7, condemned for the
widening of Second Avenue in Distria Court Cause Number h^~^7, as provided for
by City of Seattle Ordinance Number 1107;
TOGETHER WITH uhat portion of the vacated alley Iying within said Block 13 bv
the City of Seattle Ordinance Number 114969. Net rentable square feet' and
~rentable area~ as used herein shall mean Rentable Area as defuned in BOMA
American National Standard Z65.1-1980 (reprinted May 1981).
3. COMMENCEMENT AND EXPIRATION DATES:
(a) COMMENCEMENT DATE Provided that the common facilities for access and
service to the premises have been completed, the Commencement Date shall be the
date specified in Section l(e) or such earlier date upon which the Tenant's
imrpovement work described in Section V of Exhibit B has been completed, as
evidenced by a certificate to that effect delivered to Landlord by Tenant's
architect.
(b) TENANT OBLIGATIONS. If completion of the Premises is delayed due to the
failure of Tenant to fulfill any obligation under this Lease or any exhibit
hereto, the Lease shall be deemed to have commenced upon the date specified in
Section 1 (e).
(c) TENANT TERMINATION RIGHTS. In the event, due to delays from any cause other
than Tenant's failure to comply with the terms of this Lease, the Premises are
not delivered to Tenant within 30 days of the date of this lease with Landlord's
improvement work described in Ssectio I of Exhibit B completed, Tenant may
terminate this Lease by written notice. Termination under this Section 3(c)
shall be Tenant's sole remedy and Tenant shall have no other rights or claims
hereunder at law or inequity.
(d) Expiration Date. The Lease shall expire on the date specified in Section
l(f).
4. ACCEPTANCE OF PREMISES: Because this Lease is entered into after the
completion of Landlord's improvement work described in Section I of Exhibit B in
the Premises, Tenant accepts the Premises "as is" as of the date of this Lease.
The acceptance of the premises "as is" does not constitute the commencement
Date.
5. RENT: Tenant shall pay without notice the Rent and Additional Rent [as
defined in Section 2 (f) without deduction or offset in lawful money of the
United States in advance on or before the first day of each month at Landlord's
Notice Address set forth in Section 1(j) hereof, or to such other partyt or at
such other place as Landlord may hereafter from time to time designate in
writing Rent and Additional Rent for any partial month at the beginning or end
of the Lease term shall be prorated in proportion to the number of days in such
month.
7. PARKING: Leasing of parking by Tenant shall be subject to such reasonable
rules and regulations as Landlord or its parking operator or the City may
publish from time to time' provided Landlord delivers to Tenant a copy of such
rules and regulations. Tenant shall provide Landlord within thirty (30) days'
prior written notice of the number of parking spaces required by Tenant, up to
the maximum number specified in Section 1(i), and of any changes in those
requirements. Short-term hourly parking shall be offered during Normal Business
Hours except Saturdays [as defines in Section 9(a)1 for Tenant's clients and
customers. Landlord shall make available a parking validation system so that
Tenant may provide parking validation to its clients and customers at Tenant's
expense.
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8. USES: The Premises are to be used only for general office purposes
("Permitted Uses"), and for no other business or purpose without the prior
written consent of Landlord which consent may be withheld if Landlord
determines in its reasonable opinion that any proposed use is inconsistent with
or detrimental to the maintenance and operation of the Building as a first-class
office building in--downtown Seattle, Washington or is inconsistent with any
restriction on use of the Premises, the Building or the Land contained in any
lease, mortgage or other agreement or instrument by which the Landlord is bound
or to which any of such property is subject. Tenant shall not commit any act
that will increase the then existing rate of insurance on the Building without
Landlord's consent. Tenant shall promptly pay upon demand the amount of any
increase in insurance rates caused by any act or acts of Tenant. Tenant shall
not commit or allow to be committed any waste upon the Premises, or public or
private nuisance or other act which disturbs the quiet enjoyment of any other
tenant in the Building or which is unlawful or which will cause any substantial
noise, vibration, smoke or fumes. If Tenant should disturb the quiet enjoyment
of any other tenant in the Building, Tenant shall provide adequate insulation or
take otber reasonable action as may be necessary to eliminate the disturbance.
Tenant shall comply with all laws relating to its use or occupancy of the
Premises and shall observe such reasonable rules and regulations (not
inconsistent with the terms of this Lease) as may be adopted and made available
to Tenant by Landlord from time to time for the safety, care and cleanliness of
the Premises or the Building, and for the preservation of good order therein.,
provided Landlord delivers to Tenanant a copy of such rules and requlations.
9. SERVICES AND UTILITIES:
(a) Standard Services. Landlord Shall maintain the Premises and the public
and common areas of the Building in good order and condition consistent with the
operation and maintenance of a first-class office building in downtown Seattle,
Washington. Landlord shall furnish the Premises with electrictricity for normal
office use, including lighting and operation of low power usage office machines,
including photocopy machines and personal computers (not including a computer
room), water and elevator service at all times during the term of the Lease.
Landlord shall also provide lamp replacement service for Building Standard light
fixtures, toilet room supplies, window washing at reasonable intervals, and
customary Building janitorial, as described in Exhibit D. No janitorial service
shall be provided Saturdays, Sundays or legal holidays. The costs of any
janitorial or other service provided by Landlord to Tenant which are in addition
to the services ordinarily provided Building tenants shall be repaid by Tenant
as Additional Rent upon receipt of billings therefor.
From 7:00 a.m. to 6:00 p.m. on weekdays and from 8:00 a.m. to 1:00 p.m. on
Saturdays, excluding legal holidays ("Normal Business Hours"), Landlord shall
furnish to the Premises heat and air conditioning. If requested by Tenant,
Landlord shall furnish heat and air conditioning at times other than Normal
Business Hours and the cost of such services, as established by Landlord, shall
be paid by Tenant as Additional Rent upon receipt of billings therefor. During
other than Normal Business Hours, Landord may restrict access to the Building in
accordance with the Building's security system, provided that Tenant shall have
at all times during the term of this Lease (24 hours of all days) reasonable
access to the Premixs.
(b) INTERRUPTION OF SERVICES. Landord shall not be liable for any loss,
injury or damage to person or property caused by or resulting from any
variation, interruption, or failure of such services due to any cause
whatsoever,except for the negligence or willful misconduct of Landlord or its
agents, employees or contractors. No temporary interruption or failure of such
services incident to the making of repairs, alterations or improvements or due
to accident, strike or conditions or events beyond Landlord's reasonable control
shall be deemed an eviction of Tenant or relieve Tenant from any of Tenant's
obligations hereunder; provided, however, if such interruption or failure shall
continue for five (5) business days, Tenant's Rent hereunder shall be thereafter
abated to the extent the Premises are thereby rendered untenantable for Tenant's
normal business operations until such services shall be restored.
(c) ADDITIONAL SERVLCES. The Building Standard mechanical system is
designed to accommodate heating loads generated by lights and equipment using up
to 2.7 watts per square foot. Before installing lights and equipment in the
Premises which in the aggregate exceed such amount, Tenant shall obtain the
written permission of Landiord. Landlord may refuse to grant such permission
unless Tenant shall agree to pay the costs of Landord for installation of
supplementary air conditioning or electrical systems as necessitated by such
equipment or lights.
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<PAGE>
In addition, Tenant shall in advance, as Additional Rent on the first day
of each month during the Lease term, pay Landord the reasonable amount estimated
by Landlord as the cost of furnishing electricity for the operation of such
equipment or lights and the reasonable amount estimated by Landlord as the cost
of operation and maintenance of supplementary air conditioning units
necessitated by Tenant's use of such equipment or lights. Landlord shall be
entitled to install and operate at Tenant's cost a monitoring/metering system
in the Premises to measure the added demands on electrical, heating,
ventilation and air conditioning systems resulting from such equipment and
lights and from Tenant's after hours heating, ventliation and air conditioning
service requirements. Tenant shall comply with Landlord's reasonable
instructions for the use of drapes and thermostats in the Building.
10. COSTS OF OPERATIONS AND REAL ESTATE TAXES: See also Exhibit C, Item 9.
(a) ADDITIONAL RENT Tenant shall pay as Additional Rent its pro rata share
of increases in operating costs in excess of operating costs in the base year
and taxes in excess of the base year taxes determined by multiplying the 1993
King County milage rate by the fully assessed value of the Building.("base
amounts"). Operating costs shall be adjusted to reflect changes in the
occupancy level in the Building so that Additional Rent shall not reflect
changes in operating costs to the extent attributable to changes in the
occupancy.
(b) DEFINITIONS For the purposes of this section, "taxes" shall mean taxes
and assessments on real and personal property payable during any calendar year
with respect to the Land, the Building and all property of landord, real or
personal, used directly in the operation of the Building and located in or on
the Building, together with any taxes levied or assessed in addition to or in
lieu of any such taxes or any tax upon leasing of the Building or the rents
collected (excluding any net income, business and occupation, or franchise tax).
"Operating costs" or "costs" shall mean all expenses of Landlord for
maintaining, operating and repairing the Land and Building and the personal
property used in connection therewith including without limitation insurance
premiums, utilities, customary management fees and other expenses which in
accordance with generally accepted accounting and mangement practices would be
considered an expense of maintaining, operating or repairing the Building;
excluding, however: (i) costs of any special services rendered to individual
tenants for which a separate charge is collected; (ii) leasing commissions and
other leasing expenses; and (iii) costs of improvements required to be
capitalized in accordance with generally accepted accounting principles, except
operating costs shall include amortization of capital improvements (A) made
subsequent to initial development of the Building which are designed with a
reasonable probability of improving the operating efficiency of the Building,
provided that such amortization shall not exceed the reasonably expected savings
in operating costs; or, (B) which are reasonably responsive to requirements
imposed with respect to the Building under any amendment to any applicable
building, health safety, fire, nondiscrimination, or similar law or See Exhibit
regulation ("law"), or any new law, or any new interpretation of a law. See
Exhibit C, Section II. In the event the average occupancy level of the Building
for the base year and/or any subsequent year was or is not one hundred percent
(100%) or more of full occupancy, then the operating costs for such year shall
be proportionately adjusted by Landlord to reflect those costs which would have
occurred had the Buildings been one hundred percent (100%) occupied during such
year.
'Tenant's pro rata sbare' shell mean a percentage determined by dividing the
rentable area of the Premises by tbe rentable area of the Buildin5. If the
rentable area of the Premises or the Buildir,; shaO change, Tenant's pro rata
share shall be adjusted accordingly.
"Year" shall mean the calendar year. "Base year" means the 1993 calendar year.
(c) Estimated Cost At the begining of each calendar year after the base year,
Landlord shall furnish Tenant an itemized written statement of estimated
operating costs and taxes for such calendar year: a calculation of the amount,
if any, by which such estimated costs and taxes will exceed the relevant base
amounts; and a calculation of Tenant's pro rata share of any such amount. Tenant
shall pay one twelfth (1/12) of that amount as Additional Rent for each month
during the calendar year. See Exhibit C, Section 11. lf at any time during the
year Landlord reasonably believes that the actual costs or taxes will vary from
such estimated costs or taxes by more than five percent (5%), Landlord may by
written notice to Tenant revise the estirnate for such calendar year , and
Additional Rent for the balance of such year shall be paid based upon such
revised estimates
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(d) ACTUAL COSTS. Within ninety (90) days after the end of each calendar year
after the base year OR AS SOON THEREAFTER AS PRACTICABLE, LANDLORD SHALL deliver
to Tenant a written statement setting forth Tenant's pro rata share of the
actual operating costs and taxes in excess of the base amounts during the
preceding year. See Exhibit C Section 11. If the actual operating costs in
excess of the base amount or actual taxes in excess of the base amount, or both
exceed the estimates for each paid by Tenant during the year, Tenant SHALL PAY
THE AMOUNT OF SUCH EXCESS TO LANDLORD AS Additional Rent within thirty (30) days
after receipt of SUCH STATEMENT. IF THE ACTUAL operating costs in excess of the
base amount or actual taxes in excess of the base amount, or both, are less than
the amount paid by Tenant to Landlord, then the amount of such overpayment by
Tenant shall be credited against the next Rent payable by Tenant hereunder, or,
if the Lease has been terminated or the Lease term has expired, the amount of
such overpayment shall be refunded to Tenant together with such statement.
(e) RECORDS AND ADLUSTMENTS. Landlord shall keep records showing all
expenditures made in connection with operating costs and taxes and such records
shall be available for inspection by Tenant. Operating costs and taxes shall be
prorated for any portion of a year at the beginning or end of the term of this
Lease. Notwithstanding this Section 10, the Rent payable by Tenant shall in no
event be less than the Rent specified in Section 1(g) hereof.
(F} Personal PROPERTV TAXES. Tenant shall pay directly to the taxing authority
personal property taxes with respect to property of Tenant located on the
Premises or in the Building. "Property of Tenant" shall include all
improvements which are paid for by Tenant and "personal property taxes" shall
include all property taxes assessed against the property of Tenant, whether
assessed as real or personal property.
11. CARE OF PREMISES: Landlord shall perform all normal maintenance and repairs
to the Premises which Landlord reasonably determines necessary to maintain the
Premises and the Building as a first-class office building; provided that
Landlord shall not be required to maintain or repair any Property of Tenant or
any appliances (such as water heaters, refrigerators, microwaves and the like)
which are part of the Premises. Tenant shall take good care of the Premises.
Tenant shall not make any alterations, additions or improvements
(":Alterations") in or to the Premises, or make changes to locks structural
changes or add, disturb or in any way change any plumbing or wiring ("Changes")
without first obtaining the written consent of Landlordd except Tenant will be
permitted to make minor changes in the electircal outlets as long as such work
is done to code and by an electrical contractor approved by Landlord and Tenant
provides Landlord with written notice of change in work within 2 weeks and pays
resonable cost of maintaining accurate as-built drawings, and, where
appropriate, in acrordance plans and specifications approved by Landlord.In
any event, all Alterations shall be scheduled and coordinated through Landlord.
Any Alterations or Changes required to be made to the Premises because of
Tenant's uniqe and specific use thereof by any amendment to any applicable
building, health, safety, fire, nondiscrimination, or similar law or regulation
('law'), or any new law shall be made at Tenant's sole expense and shall subject
to prior written consent of Landlord. Tenant shall reimburse Landlord for any
reasonable sums expended for examination and approval of architeaural or
mechanical plans and specifcations of the Alterations and Changes and direct
costs reasonably incurred during any inspection or supervision or Changes. All
damages or injury done to the Premises or Building by Tenant or by any persons
who may be in or upon the Premises or Building with the express or implied
consent of Tenant, including but not limited to the cracking or breaking of any
glass of windows and doors, shall be paid for by Tenant, unless the damace or
injury is caused by the ngeligence or willfull misconduct of Landlord or its
agents, employees or contractors.
ACCESS: Tenant shall permit Landlord and its agents to enter into and upon
thePremises at all reasonable times after resonable prior notice for the purpose
of inspecting the same or for the purpose of cleaning, repairing, altering or
improving the Premises or the Building. Upon reasonable notice, Landlord shall
have the right to enter the Premises for the purpose of showing the Premises to
prospective tenants within the period of one hundred eighty (180) days prior to
the expiration or sooner termination of the Lease term.
13. DAMAGE OR DESTRUCTION:
(a) Damage and Repair. If the Building is damaged by fire or any other cause to
such extent that the cost of restoration, as reasonably estimated by Landlord,
will equal or exceed thirty percent (30%) of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the damage,
or if insurance proceeds sufficient for restoration are for any reason
unavailable, then Landlord may no later than the sixtieth day following the
damage, give Tenant a to terminate this Lease. In the event of such election,
this Lease shall be deemed to terminate on the third day after the giving of
such notice, and Tenant shall surrender possession of the Premises within a
reasonable time thereafter, and the Rent and Additional Rent shall be
apportioned as of the date of Tenant's surrender and any rent and Additional
Rent paid for any period beyond such date shall be repaid to Tenant with 30
business days after Tenant's surrender. If cost of restoration as estimated by
Landlord shall amount to less than
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thirty percent (30%) of said replacement value of the Building and insurance
proceeds sufficient for restoration are available, Landlord shall restore the
Building and the Premises (with improvements substantiallycomparable in quality
to the improvements to the Premises originally provided or paid for by Landlord
hereunder) with reasonable promptness, subject to delays beyond Landlord's
control and delays in the making of insurance adjustments by Landlord. To the
extent that the Premises are rendered untenantable, the Rent shall
proportionatley abate from the date of the fire or other cause of damage, except
in the event such damage resulted from or was contributed to directly or
indirectly, by the act, fault or neglet of Tenant, Tenant's officers,
contractors, agents customers or licensees, in which event Rent shall abate only
to the extent Landlord receives proceeds from any rental income insurance policy
to compensate Landlord for loss of Rent hereunder. No damages, compersation or
claim shall be payable by Landlord for inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the Premises
or the building. Notwithstanding the foregoing, if Landlord is obligated to or
elects to restore the Building, and the Premises, or access to the Premises, has
been affected by the casualty so that Tenant, is its reasonable opinion, can no
longer carry on its normal business operations, Tenant shall bave the option to
terminate this Lease upon writtn notice to Landlord prior to commencement of
restoration if Landlord estimates such restoration will not be completed with 12
months of the date of the fire or other cause of damage, if there is 36 months
or more remaining in the Lease term, and within 6 months of the date of the
cause of damage, if there is less that 36 months remaining in the Lease term.
(b) DESTRUCTION DURING LAST YEAR OF TERM. In case the Building or the Premises
shall be substantially destroyed by fire or other cause at any time during the
last twelve (12) months of the term of of this lease, either Landlord or Tenant
may terminate this Lease upon written notice to the other within sixty (60) days
of the date of such I
destruaion.
(c) TENANT IMPROVEMENT. Landlord will not carry insurance of any kind on any
improvements paid for by Tenant as provided in Exhibit B or on Tenant's
furniture, furnishings,fixtures, equipment or appurtenaaces of Tenant under this
Lease and Landlord shall not be obligated to repair any damages thereto or
replace the same.
14. WAIVER OF SUBROGATION: Whether the loss or damage is due to the negligence
of either Landlord or Tenant or any other cause, Landord and Tenant each hereby
release and relieve the other, its agents or employees, from responsibility for,
and waive its entire claim of recovery for (I) any loss or damage to its real or
personal property located anywhere in the Buiiding, including the building
itself, arising out of or incident to the occurrence of any of the perils which
are covered by its property and related insurance policies, and (ii) any loss
resulting from business interruption at the Premises or loss of rental income
from the Building, arising out of or incident to the occurrence of any of the
perils by any business interruption or loss of rental income iasurance policy
held by it. Each party shall use best efforts to cause its insurance carriers to
consent to the foregoing waiver of , rights of subrogation against the other
party. Notwithstanding the foregoing, no such release shall be effective except
to the extent the applicable insurance policy or policies shall expressly permit
such a release or contain a waiver of the carrier's right to be subrogated.
15. INDEMNIFICATION: Tenant shall indemnify, defend and hold Landlord harmless
from and against liabilities, damages, losses, claims and expenses, including
reasonable attorneys fees, arising from anv act, omission, or negligence of
Tenant or its officers contractors, licensees, agents, employees, clients or
customers in or about the Building or Premises arising from any injury or damage
to any person or property, occurring in or about the Building or Premises or
arising from any breach or default under this Lease by Tenant. The foregoing
provisions shall not be construed to make Tenant responsible for loss damage,
liability or expense resulting from injuries to third parties or property to the
extent caused by the negligence of Landlord, or its officers, contractors,
licensees, agents employees, clients or customers or other tenants of the
Building.
Landlord shall indemnify, defend and hold Tenant harmless from and against all
liabilities, damages, losses, claims and expenses, including reasonable
attorneys fees, arising from any act, omission or negligence of Landlord or its
officers, contractors, licensees, agents or employees in or about the Building
or Premises, or from any breach or default under this Lease by Landlord.
Landlord shall not be liable for any loss or damage to persons or property
sustained by Tenant or other persons, which may be caused by theft, or by any
act or neglegent of Tenant or any other tenant or occupant of the Building or
any third parties.
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16. INSURANCE
(a) Tenent's Insurance. Tenant shall, throughout the term of this Lease and any
renewal hereof, at its own expease, keep and maintain in full force and
effect, a policy of commercial general liability insurance, occurrence form,
with Landlord as additional insured, including, to the extent insurable under
commonly available commercail general liability insurance policies contractual
liability coverage covering Tenant's obligations under Section 15, insuring
Tenant's activities upon, in or about the Premises or the Building against
claims of bodily injury or death or property damage or loss with a limit of
not less than One Million Dollars ($1,000,000) combined single limit per
occurrence. Tenent shall carry what is commonly referred to as "all risk"
coverage insurance (earthquake and flood) on Tenant's leasehold improvements in
an amount not less than one hundred percent (100%) of the current replacement
value thereof.
(b) INSURANCE POLICV REQUIREMENT. All insurance policies required under this
Section 16 shall be with companies reasonably approved by Landlord and each
policy shall provide tbat it is not subject to cancellation or reduction in
limits except after prior written notice to Landlord, except after ten (10)
days' prior written notice to Landlord in cases of non-payment of premium.
Tenant shall deliver to Landlord upon tbe Commencemeat Date, and from time to
time thereafter, certificates evideacing the existeace and amounts of all such
policies.
(c) Landlord's Insurance. Landlord shall maintain all risk insurance coverage
(excluding flood and earthquake) in the amount of the Building's replacement
cost.
17.ASSINMENT AND SUBLETTING:
(a) ASSIGNMENT OR SUBLEASE. Tenant shall not assign, mortgage, encumber or
otherwise transfer this Lease or sublet the whole or any part of the Premises
without in each case first obtaining Landlord's prior written consent. Such
consent shall not be unreasonably withheld or delayed and shall be considered
given if not denied in writing with 10 business days of Tenant's request.
Notwithstanding the foregoing, landlord may withhold its consent if in
Landlord's judgment occupancy by any proposed assignee, subtenant or other
transferee: (i) is not consistent with the maintenance and operation of a
first-class office building due to the nature of the proposed occupant's
business or the manner of conducting its BUSINESS OR ITS EXPERIENCE or
reputation in the community, or (ii) is likely to cause disturbance to the
normal use and occupancy of the Building, (2) Landlord may withhold in its
absolute and sole discretion, consent to any mortgage, hypothecation, pledge
or other encumbrance of any interest in this Lease or the Premises by Tenant or
any subtenant, whereby this Lease or any interest therein becomes collateral
for any obligation of Tenant; and (3) Landlord may withhold its consent to the
extent Landlord determines necessary to comply with a restriction on use of the
Premises, the Building or the Land contained in any lease, mortgage, or other
recorded agreement or instrument by which the landlord is bound or to which any
such property is subject. No such assignment, subletting or other transfer shall
relieve Tenant of any liability under this Lease. Any subleasing profits, after
deducting Tenant's reasonable costs of subletting, shall be the property of
Landlord, Consent to any such assignment, subletting or shall not operate as a
waiver of the necessity for consent to any subsequent assignment, subletting or
transfer. In lieu of granting any such consent for subleasing or assignment for
the balance of the Lease term, for a full floor, Landlord reserves the right to
terminate this Lease or, in the case of a subletting of less than all the
Premises, to terminate this Lease with respect to such portion of the Premises,
as of the proposed effective date of such subletting or assignment, in which
event Landlord may enter into the relationship of landlord and tenant with such
proposed assignee or subtenant based upon the Rent and other compensation and
terms agreed to by such subtenant or assignee and otherwise upon the terms and
conditions of this Lease. In connection with each request for an assignment or
subletting, Tenant shall pay $300.00 for the cost of processing such assignment
or subletting, including attorneys fees, upon demand of Landlord. Tenant shall
provide Landlord with copieS of all assignments, subleases and assumption
instruments.
(b) ASSIGNEE OBLIGATIONS. As a condition to Landlord's approval, any potential
assignee otherwise approved by Landlord shall assume in writing all obligations
of Tenant under this Lease and shall be jointly and severally liable with Tenant
for the payment of Rent and performance all terms, covenants and conditions of
this Lease.
(c) Sublessee Obligations. Any sublessee shall assume all obligations of Tenant
as to that portion of the Premises which is subleased to such sublessee and
shall be jointly and severally liable with Tenant for rental and other payments
and performance of all terms covenants, and conditions of this Lease with
respect to such portion of the Premises.
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SIGNS: Tenant shall not place or in any manner display any sign, graphics or any
advertising matter anywhere in or about the Premises or the Building at places
visible (either directly or indirectly) from anywhere outside the Premises
without first obtaining Landlord's written consent Any such consent by Landlord
shall be upon the understanding and condition that Tenant shall remove the same
at the expiration or sooner termination of this Lease and Tenant shall repair
any damage to the Premises or the Building caused thereby. Landlord shall not
withhold its consent to normal Tenant identification signs and logos which are
consistent with the Building signage and graphics program.
19. LIENS AND INSOLVENCY:
(a) Liens Tenant shall keep its interest in this Lease and any property of
Tenant (OTHER THAN UNATTACHED PERSONAL PROPERTY) and the Premises the Land and
the Building free from any liens arising out of any work performed or materials
ordered or obligations incurred by or on behalf of Tenant and hereby indemnifies
and holds Landlord harmless from any liability from any such lien, including,
without limitation, liens arising from any work performed pursuant to Section VI
Exhibit B hereto. in the event any Lien is filed against the Building, the Land
or the Premises by any claiming by, through or under Tenant, Tenant shad, upon
request of Landlord, at Tenant's expense immediately either cause such Lien to
be released of record or furnish to Landlord a bond in form and amount and
issued by a surety reasonably satisfactory to Landlord, indemnifying Landlord,
the Land and the Building against all liability, costs and expenses including
reasonable attorneys fees which Landlord may incur as a result thereof. Provided
that such bond has been furnished to Landlord, Tenant, at its sole cost and
expense and after written notice to Landlord, may contest, by appropriate
proceedings conducted in good faith and with due diligence, any lien,
encumbrance or charge against the Premises arising from work done or materials
provided to or for Tenant, if, and only if, such proceedings suspend the
collection thereof against Landlord, Tenant and the Premises and neither the
Premises, the Building nor the Land nor any part thereof or interest therein is
or will be in any danger of befog sold, forfeited or lost.
(b) INSOLVENCY. If Tenant becomes insolvent or voluntarily or involuntarily
becomes a debtor or alleged debtor in a bankruptcy proceeding, or if a receiver,
assignee or other liquidating officer is appointed for the business of Tenant,
Landlord at its option may terminate this Lease and Tenant's right of possession
under this Lease and in no event shall this Lease or any or privileges hereunder
be an asset of Tenant in any bankruptcy, insolvency or reorganization
proceeding.
20. DEFAULT:
(a) CUMULATIVE REMEDIES. All rights of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by law. In
addition to the other remedies provided in this Lease, Landlord shall be
entitled to restrain by injunction the violation or attempted violation of any
of the covenants, agreements or conditions of this Lease.
(b) TENANT'S RIGHT TO CURE. Tenant shall have a period of five (5) business
days from the date of written notice from Landlord to Tenant within which to
cure any default in the payment of Rent, Additional Rent or other sums due
hereunder. Tenant shall have a period of fifteen (15) days from the date of
written notice from Landlord to Tenant within which to cure any other default
hereunder which is capable of being cured by Tenant; provided, however, that
with respect to any default capable of being cured by Tenant but which cannot be
cured within such fifteen (L5) day period" the default shall not be deemed to be
uncured if Tenant commences to cure within fifteen (15) days and for so long as
Tenant is diligently prosecuting the cure thereof.
(d) LANDLORD'S REENTRY. Upon a default under this Lease by Tenant and
expiration of any applicable cure period, Landlord, at its option, may
enter the Premises or any part thereof, and expel, remove or put out
Tenant or any other persons who may be thereon, together with all
personal property found therein; and Landlord may terminate this
Lease, or it may from time to time, without terminating this Lease and
as agent of Tenant, relet the Premises or any part thereof for such
term or terms (which may be for a term less than or extending beyond
the term hereof) and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem
advisable, with the right to repair, remodel and change the Premises,
Tenant remaining liable for any deficiency computed as provided in
Section 20(e). In the case of any default, reentry and/or
dispossession by summary proceedings or otherwise, all Rent and
Additional Rent shall become due thereupon and be paid up to the time
of such reentry or dispossession, together with such expenses as
Landlord may reasonably
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incur for attorneys fees, advertising expenses, brokerage fees and/or
putting the Premises in good order or preparing the same for re-
rental, together with interest thereon as provided in Section 35(f)
hereof, accruing from the date of any such expenditure by Landlord.
(e) RELETTING THE PREMISES. At the option of Landlord, rents received by
Landlord from such reletting shall be applied ftrst to the payment of any
indebtedness from Tenant to Landlord other than Rent and Additional Rent due
hereunder second, to the payment of reasonable costs and expenses of such
reletting and including but not limited to, attorneys fees, advertising fees and
brokerage fees, and to the payment of any repairs, remodeling and changes in the
Premises; third, to the payment of Rent and Additional Rent due and to become
due hereunder, and, if after so applying said Rents there is any deficiency in
the Rent or Additional Rent to be paid by Tenant under this Lease, Tenant shall
pay any deficiency to Landlord monthly on the dates specified herein and any
payment made or suits brought to collect the amount of the deficiency for any
month shall not prejudice in any way the right of Landlord to collect the
deficiency for any subsequent month. Subject to any applicable duty to mitigate
damages, the failure of Landlord to relate the Premises or any part or parts
thereof shall not release or affect Tenant's liability hereunder, nor shall
Landlord be liable for failure to relate, or in the event of reletting for
failure to covect the Rent thereof, and in no event shall Tenant be entitled to
receive any excess of net Rents collected over sums payable by Tenant to
Landlord hereunder. No such reentry or taking possession of the Premises shall
be construed as an election on Landlord's part to terminate this Lease unless a
written notice of such intention be given to Tenant. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach and default. Should Landlord at
any time terminate this Lease by reason of any default, in addition to any other
remedy it may have, it may recover from Tenant the amount of Rent and Additional
Rent reserved in this Lease for the balance of the Term, as it may have been
extended, in excess of the then fair market rental value of the Premises for the
same period, plus all court costs and reasonable attorneys fees incurred by
Landlord in the collection of the same.
(t) NONPAYNENT OT ADDITIONAL RENT. All costs and expenses which Tenant
assumes or agrees to pay to Landlord pursuant to this Lease shall be deemed
Additional Rent. and, in the event of nonpayment thereof, Landlord shall have
all the rights and remedies herein provided for in case of nonpayment of Rent.
21. PRIORITY: This Lease shall be subordinate to any fIrst mortgage or deed of
trust (and any other mortgage or deed of rust upon the written election of
Landlord) now existing or hereafter placed upon the Land, the Building or the
Premises, created by or at the instance of Landlord, and to any and all advances
to be made thereunder and to interest thereon and all modifications, renewals
and replacements or extensions thereof ("Landlord's Mortgage"). Upon request of
such holder, Tenant shall attorn to the holder of any Landlord's Mortgage or any
person or persons purchasing or otherwise acquiring the Land, Building or
Premises at any sale or other proceeding under any Landlord's Mortgage, provided
that such holder of Landlord's mortgage or person(s) purchasing or otherwise
acquireing the Land, Building or Premises agrees in writing to recognize all of
Tenant's rights under this Lease and to perform all the obligations of Landlord
under this Lease. Tenant shall properly execute, acknowledge and deliver
documents which the Holder of any Landlord's Mortgage may reasonably require to
effectuate the provisions of this Section 21. Lanelord shall provide to Tenant a
Subordination, Non-Disturbance and Attornment agreenent in a form reasonably
acceptable to Tenant with 45 days of Lease execution.
22. SURRENDER OF POSSESSION: Subject to the terms of Section 13 relating to
damage and destruction, upon expiration or sooner termination of this Lease,
Tenant shall promptly and peacefully surrender the Premises to Landlord in as
good condition as when received by Tenant from Landlord or as thereafter
improved, reasonable use, wear and tear excepted.
23. REMOVAL OF PROPERTY: Tenant shall remove all of its moveable personal
property and trade fixtures paid for by Tenant at the expiration or sooner
termination of this Lease, and shall pay Landlord any damages for injury to the
Premises or Building resulting from such removal; and all other improvements and
additions to thePremises shall thereupon become the property of Landlord.
24. NON-WAIVER Waiver by Landlord or Tenant of any term, covenant or
condition herein contained or any breach thereof shall not be deemed to be a
waiver of such term, covenant, or condition or of any subsequent breach of the
same or any other term, covenant, or condition herein contained. The subsequent
acceptance of Rent or Additional Rent hereunder by Landlord shall not be deemed
to be a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, other than the failure of Tenant to pay the particular
Rent or Additional Rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Rent or Additional Rent.
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2S. HOLDOVER If Tenant shall with the written consent of Lantlord, hold
over after the expiration of the term of this Lease, such tenant shall be deemed
a month-to-month tenant which may be terminated as provided by applicable law.
During such tenany, Tenant shall be bound by all of the terms covenants and
conditions herein so far as applicable, except rental which shall be the greater
of (a) the then quoted rates for similar space in the Building or (b) the Rent
and Additional Rent stated herein.
26. CONDEMNATION:
(a) ENTIRE TAKING. If all of the Premises or such portions of the Building
as may be required for the reasonable use of the Premises are taken by eminent
domain, this Lease shall automatically terminate as of the date title vests in
the condemning authority. In the event of a taking of a material part of but
less than all of the Building, where Landlord shall determine that the remaining
portions of the Building cannot be economically and effectively used by it
"whether on account of physical, economic, aesthetic or other reasons) or where
Landlord determines the Building should be restored in such a way as to
materially alter the Premises, Landlord shall forward a written notice to Tenant
of such determination not more than sixty (60) days after the date of taking.
The term of this Lease shall expire upon such date as Landlord shall specify in
such notice but not earlier than sixty (60) days after the date of such notice.
(b) PARTIAL TAKING Subject to the provisions of the preceding Section 26(a), in
case of taking of a part of the Premises or a portion of the Building not
required for the reasonable use of the Premises then this Lease shall continue
in full force and effect and the Rent shall be equitably reduced based on the
proportion by which the floor area of the Premises is reduced, such Rent
retuction to be effective as of the date title to such portion vests in the
condemning authority. If a portion of the Premises shall be so taken which
renders the remainder of the Premises unsuitable for continued occupancy by
Tenant under this Lease, Tenant may terminate this Lease by written notice to
Landlord no later than sixty (60) tays after the date of such taxing and the
term of this Lease shall expire upon such date as Tenant shall specify in such
notice not later than sixty (60) days after the date of such notice.
(c) AWARDS AND DAMAGES. Landlord reserves all rights to damages to the Premises
for any partial, constructive, or entire taking by eminent domain, and Tenant
hereby assigns to Landlord any right Tenant may have to surh damages or award.
Tenant shall make no claim against landlord for damages for termination of the
leasehold interest or interference with Tenant's business. Tenant shall have the
right, however, to claim and recover fromthe condemning authority compensation
for any loss to which Tenant may be put for Tenant's moving expenses, business
interruption or taking of Tenant's personal pronerty and leasehold improvements
paid for by Tenant, induding Tenant's leasehold interest paid for by Tenant
without reimbursement by Landlord, provided that said damages may be claimed
only if they are awarded separately in, the eminent domain proceedings and not
out of or as part of the damages recoverable by landlord.
27. NOTICES: All notices under this Lease shall be in writing and delivered in
person or sent by registered or certified mail, postage prepaid, or by facsimile
with confirmation by telephone, to Landlord and to Tenant at the Notice
Addresses provided in Section 1(j) (provided that after the Commencement Date
any such notice maybe mailed or delivered by hand to Tenant at the Premises and
to Landlord's principal office in the Building) and to the holder of any
mortgage or deed of trust at such place as such holder shall specify notices
shall to Tenant in writing or such other addresses as may from time to time be
designated by any such party in writing. Personally-delivered ntoices shall be
deemed given on the date delivered. Notices mailed as aforesaid shall be deemed
given on the date of such mailing. Notices delivered on the date by facsimile
shall be deemed given on the date receipt is confirmed by telephone.
28. COSTS AND ATTORNEYS FEES: If Tenant or Landlord shall bring any action for
any relief against the other, declaratory or otherwise, arising out of this
Lease, including any suit by Landlord for the recoveery of Rent, Additional Rent
or other payments hereunder or possession of the Premises, each party shall and
hereby does, to the extent permitted by law, waive trial by jury and the losing
party shall pay the prevailing party a reasonable sum for attorneys fees in such
suit, at trial and on appeal, and such attorneys fees shall be deemed to have
accrued on the commencement of such action.
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29. LANDLORD'S LlABILllY: Anything in this Lease to the contrary
notwithstanding, covenants, undertakings and aagreements herein made on the part
of Landlord are made and intended not as personal covenants, undertakings and
agreements for the purpose of binding Landlord personally or the assets of
Landlord except Landlord's interest in the Premises and Building, but are made
and intended for the purpose of binding only the Landlord's interest in the
Premises and Building, as the same may from time to time be encumbered. No
personal liability or personal responsibility is assumed by, nor shall at any
time be asserted or enforceable against Landlord or its partners or their
respective heirs, legal representatives, successors or assigns on account of the
Lease or an account of any covenant, undertaking or agreement of Landlord in
this Lease contained.
30. LANDLORD'S CONSENT: Except as specified in other provisions of this Lease,
whenever Landlord's consent is required under the terms hereof, such consent
shall not be unreasonably withheld, or delayed, and sball be considered qiven if
not denied ln writingc within 10 business days of Tenant s request.
31. ESTOPPEL CERTIllCATES: Tenant shall, from time to time, upon written request
of Landlord, execute, acknowledge and deliver to Landlord or its designee a
written statement stating the date this Lease was executed and the date it
expires; the date the term commenced and thc date Tenant accepted the Premises;
the amount of minimum monthly Rent and the date to which such Rent has been
paid; and certifying to the extent true: That this Lease is in full force and
effect; that all conditions under this Lease to be performed by the Landlord
have been satisfied; that there are no claims, defenses or offsets which the
Tenant has against the enforcement of this Lease; that no Rent has been paid
more than one month in advance; and such other matters as Landlord may
reasonably request. Any such statement delivered pursuant to this paragraph may
be relied upon by a prospective purchaser of Landlord's interest or holder of
any mortgage upon Landlord's interest in the Building. If Tenant shall fail to
respond within ten (10) days of receipt by Tenant of a written request by
Landlord as herein provided, Tenant shall be deemed to have given such
certificate as above provided without modification and shall be deemed to have
admitted the accuracy of any information supplied by Landlord to a prospective
purchaser or mortgagee and to have certified that this Lease is in full force
and effect, that there are no uncured defaults in Landlord's performance, that
the security deposit is as stated in the Lease, and that not more than one
month's Rent has been paid in advance.
32. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfers Landlord's
interest in the Premises or in the Building, other than a transfer for security
purposes only, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from and after the
date of such transfer and such transferee shall have no obligation or liability
with respect to any matter occurring or arising prior to the date of such
transfer. Tenant agrees to attorn to the transferee, provided the transferee
agrees in wiritng to assume all of Landlords obligations under this lease that
occur or arise after the date of such transfer.
33 RIGHT TO PERFORF: If Tenant shall fail to pay any sum of money required to
be paid by it hereunder or shall fail to commence to perform any other act on
its part to be performed hereunder, and such failure shall continue for ten (10)
days after writtn notice thereof by Landlord, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any obligations
of make such payment or perform any such other act on Tenant's part to be made
or performed as provided in tbis Lease. Landlord shall have (in addition to any
other right or remedy of Landlord) the same rights and remedies in the event of
the nonpayment of sums due under this Section 33 as in the case of default by
Tenant in tbe payment of Rent.
34. QUIET ENJOYMENT: Tenant shall have tbe right to the peaceable and quiet use
and enjoyment of the Premises subject to tbe provisions of tbis Lease, as long
as Tenant is not in default hereunder.
35. GENERAL
(a) Headings. Titles to Sections of this Lease are not a part of this Lease and
shall bave no effect upon tbe construction or interpretation of any part hereof.
(b) HEIRS AND ASSIGNS. Allof tbe covenant agreements, terms and conditions
contained in tbis Lease sball inure to and be binding upon the Landlord and
Tenant and tbeir respective heirs, executors, administrators, successors and
assigns
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(c) NO BROKERS. Landlord and tenant each represents and warrants to the other
that it has not engaged any broker except Teutsch Partners,finder or other penon
who would be entitled to any commission or fees in respect to thc negotiation,
execution or delivery of tbis Lease and shall indemnify and hold harmless
against any loss, cost, liability or expcsse incurred as a result of any claim
asserted by any sucb broker, finder or other person on tbc basis of any
arrangements or agreements made or allged to have been made by or on behalf of
the other. The provisions of this Secion 35(c) shall not apply to brokers with
whome Landllord has an express written broke ragreement. See also Exhibit C,
Item 8.
(d) ENTLRE AEREEMENT. Tbis Lease contains all covenants and agreements between
Landllord and Tenant relating in any manner to tbe leasing, use and occupanq of
tbe Premises, to Tenant's use of tbe Building and other matters set forth in
tbis Lease. No prior agreements or understanding pertaining to tbe same
shall be valid or of any force or effea and the covenants and agreements of tbis
Leasc shall not be altered, modified or added to except in writing signed by
Landllord and Tenant.
(e) SEVERABILITY. Any provision of tbis Lease whicb shall prove to be invalid,
void or illegal sball in no way affect, impair or invalidate any other provision
hereof and tbe remaining provisions hereof shalt nevertbeless remain in full
force and effect.
(f) Overdue Payments. Any Rent, Additior al Rent or other sums payable byTenant
under tbis Lease whicb shall not be paid within 5 days of written notice by
Landlord that it is overdue shall bear interest, retroactive to the due date, at
a rate to tbree percentage points above tbe prime rate of interest published or
announced from time to time by Security Pacific Bank or its successor, or, in
the absence of any established prime rate, five percentage points over tbat
bank's rate for one year certificates of deposit, but not in excess of the
higbest lawful rate permitted under applicable laws, calculated from tbe
original due date thereof to thc datc of payment, however nothwithstanding
anytbing in tbis Section 35(f) to the contrary, the minimum overdue fee sball be
S10.00.
(g) FORCE MAIEURE. Except for the payment of Rent, Additional Rent or other sums
payable by Tenant, time periods of Tenant's or LandDord's performance under any
provisions of tbis Lease sbaD be extended for periods of time during which
Tenant's or Landlord's performance is prevented due to circumstances beyond
Tenant's or Landlord's reasonable control
(h) RIGBT TO CBANGE PUBLIC SPACES. Landlord sbail have tbe rigbt at any time
after tbe completion of tbe Building, witbout thereby creating an actual or
constructive eviction or incuring any any liability to Tenant therefor, to
change tbe arrangement or location of such of tbe following as are not contained
within tbe Premises or any part tbereof: entrances, passageways, doors and
doorways, corridors, stairs, toilets and other libe pubGc service portions of
the Building. Nevertbeless, in no event shall Landlord diminisb any service,
change tbe arrangement or location of tbe elevators servu~ tbe . Premises, make
any cbange whicb shall diminish the area of the Premisestor mabe any change
whicb shall diminish the area of tbe Premises access to the Premises or the
number of parking spaces allocated to Tenant under the Lease,or make any change
which shall change the character of the Building from that of a first-class
offfice building in downtown Seattle, Washington.
(i) GOVERNING LAW. Tbis Lease sball be governed by and construed in accordance
with tbe laws of tbe state of Washington.
(j) BUILDING DIRECTORY. Landlord sball maintain in tbe lobby of thc Building a
directory whicb shall inciudc thc name of Tenant and any otber names reasonably
requested by Tenant in proportion to thc number of listings given to comparable
tenants of tbe Building. The number of 1istings shall be no more than 1/2, 500
net rentable square feet of the Premises.
(k) BUILDING NAME. The Buiiding will be known by such name as Landlord may
designate from time to time.
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IN WITNESS WHEREOF tbis Lease has been executed as of tbe day and year first
above set forth
LANDLORD SECOND AND SENECA LIMITED PARTNERSHIP
a Washington limited partnership
BY: WRC Seneca Limited
Partnership,
Managing General Partner
BY Wright Runstad Associates Limited Partnership,
a Washington limited partnership
Its General Partner
BY: Wright Runstad and Company a Washington corporation
Its General Partner
By: /s/ H. Jon Runstad
------------------
Its H. Jon Runstad
President and Chief Executive Officer
TENANT: IMMUNEX CORPORATION
By: /s/ Michael L. Kranda
---------------------
Michael L. Kranda
Its President
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EXHIBIT C
ADDENDUM TO THE LEASE AGREEMENT BETWEEN
SECOND AND SENECA LIMITED PARTNERSHIP ("LANDLORD")
AND
IMMUNEX CORPORATION ("TENANT")
DATED DECEMBER 24, 1992
1. Rent
Rent shall be payable monthly on or before the first day of each month. Rent
for each of the 5 years of the initial Lease term shall be 1/12 of the annual
Rent calculated by multiplying the dollar amounts set forth below times the
number of rentable square feed then included within the Premises. Tenant shall
also pay Additional Rent as provided in Sections 9-10 o f the Lease.
Time Period $ per Square Foot per Year
Year 1 4-1-93 $16.00
Year 2 4-1-94 $17.00
Year 3 4-1-95 $18.00
Year 4 4-1-96 $19.00
Year 5 4-1-97 $19.00
2. Parking
Tenant shall have the right to lease from time to time (a) one parking stall in
the Building garage accessed from Seneca and Spring Streets ("Seneca Street
Garage"), on an unassigned,, self-park or, for no additional fee, Executive
Valet basis, at landlord's sole discretion, for every 1,000 rentable square fee
of space then included in the Premises, and (b) one parking stall in the
Building garage accessed from First avenue ("First Avenue Garage"), on an
unassigned self-park or, for no additional fee, Executive Valet basis at
Landlords sole discretion, for every 2,000 rentable square feet of space then
included in the Premises. The number of rentable square feet of space included
in the Space pocket (defined below) at any given time will not be considered for
purposes of calculating the number of parking spaces to which Tenant is entitled
at such time. Tenant shall lease each such space at market rate ( which is
currently $140 per month per stall), except that the rate for the First Avenue
Garage stalls leased by Tenant shall be $120 per month per stall for the first
2 years of the Lease term, and market rate thereafter.
for purposes of this Item 2, "market rate" shall mean the average rate then
charged for comparable parking stalls within a 3-block radius of the Building.
3. Relocation Allowance
In addition to the Tenant Improvement Allowance, Landlord shall provide Tenant
an allowance of $4.00 per rentable spare foot of space included in the Premises
to assist Tenant with the relocation costs of network cabling, physical
relocation and architectural drawings and design fees ("Relocation Allowance").
The Relocation Allowance for each rentable square foot of space initially
occupied by Tenant shall be paid to tenant on the Commencement Date an the
Relocation Allowance for each rentable square foot o space included in the Space
Pocket (defined below) or any Expansion Space shall be paid to Tenant on the
date that Tenant becomes obligated to begin paying Rent and Additional Rent for
such rentable square foot of space. If Landlord fails to pay the Relocation
Allowance, or any portion thereof within 60 days of the due date, Tenant shall
be entitled, upon written notice to Landlord, to deduct the unpaid amount from
the Rent and Additional Rent Tenant is obligated to pay landlord hereunder.
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4. Space Pockets
Tenant intends to occupy on the Commencement date only the portion of the
Premises that located on 10th floor of the Building. Tenant shall not be
required to occupy the portion of the Premises that is located on the 11th floor
on the Building until Tenant elects to do so. (The portion of the Premises
that is located on the 11th floor of the building that Tenant is not occupying
at the given time is referred to as the "Space Pocket"). Notwithstanding
anything in this lease to the contrary, Tenant shall have no obligation to pay
Rent or Additional Rent with respect to a particular rentable square foot of
space included within the Space Pocket until Tenant occupies such rentable
square foot of space for Permitted uses. Specifically, Tenant shall have no
obligation to pay Rent or Additional Rent with respect to a particular rentable
square foot of space included within the Space Pocket rentable square foot of
space included with the Space Pocket (a) while Tenant is doing its Tenant
improvement work in such rentable square foot of space or (b) if Tenant is
using such rentable square foot of space for storage purposes only. Tenant may
occupy the space pocket all at once or in portions but, if tenant elects to
occupy any portion of the space pocket before the first day of the 13th month of
the Lease term, such portion shall consist of at least 9,128 contiguous rentable
square feet of space. Prior to occupying any portion of the Space Pocket,
Tenant shall give Landlord written notice of the location of the portion it
intends to occupy.
Notwithstanding the foregoing (a on the first day of the 13th month of the lease
term, Tenant shall be obligated to pay rent and additional rent for 9,129 net
rentable square feet of space on the 11th floor of the Building, whether or not
Tenant then occupies it for Permitted uses; and (b) on the first day of the
25th month of the Lease term, Tenant shall be obligated to pay rent and
additional rent for the entire 11th floor of the building, whether or not tenant
then occupies it for permitted uses. The rent for each rentable square foot of
space on the 11th floor of the Building shall be as set forth in Item 1 of this
Addendum. The base Year for Additional rent for the 11th floor of the building
shall be 1993.
Tenant shall do its improvement work in the space pocket in accordance with
Exhibit B to this Lease. Such improvement work shall be completed by Tenant by
the first anniversary of the Commencement Date, or earlier if required by
tenant.
5. Options to Expand
Provided that Tenant is not in default of any term or condition of this lease at
the time it exercises its option under this Item 5, Landlord shall provide
Tenant the following option to lease additional space on the 12th floor of the
building (any space that tenant leases under this Item 5 is referred to as
"Expansion Space"):
A. Expansion option during the First 24 Months
During the first 24 months of the initial lease term, (a) Landlord shall not
lease any space on the 12th floor of the Building to any third-Party prospective
tenant ("Prospective Tenant") so long as there is sufficient space available to
meet the needs of such Prospective Tenant on other floors of the building and
(b) tenant shall have the option to lease all or at lease on half of the 12th
floor of the building as follows: If tenant desires to exercise its option to
lease any such space, Tenant shall deliver to landlord written notice of its
election to do so, which shall (I) describe the space that Tenant desires to
lease, and (ii) state the date upon which Tenant desires to else it ("requested
Possession date"), which date shall be no earlier than one full calendar month
after the date of such notice and no later than 2 full calendar months after the
date of such notice.
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B. Right of first Refusal
If (a) during the first 24 months of the lease term a Prospective Tenant offers
to lease space on the 12th floor of the Building and there is insufficient space
on other floors of the Building to met the needs of such Prospective Tenant or
(b) during the remainder of the lease term and any Extended Term (defined in
Item 6 of this Exhibit C) a Prospective Tenant offers to lease space on the 12th
floor of the building, Landlord shall first offer in writing to lease such space
to Tenant and shall give Tenant copy of any offer to lease such space that
Landlord receives from such Prospective Tenant. Tenant shall have (I) 10
working day s after the date that tenant received the copy of such offer, if
such offer is received within the first 24 month of the lease term, or (ii) 3
working days after the date Tenant receives a copy of such offer, is such offer
is received during the remainder of the Lease term or during any Extended term,
to notify Landlord in writing of its decision to lease the space on the 12th
floor of the Building that is the subject of such offer plus any other space
that is available on the 12th floor that Tenant then desires to lease. If
Tenant fails to notify Landlord in writing of its intent to lease such 12th
floor space that is subject of the prospective Tenant's offer. If Tenant elects
not to lease such space or if Tenant is deemed to have elected not to lease such
space, Landlord may lease such space to such Prospective Tenant without further
notice to Tenant. If landlord fails to enter into a binding lease for such
space such prospective tenant within 120 days after the applicable notification
period, Tenants option to lease such space shall continue in full force and
effect.
C. Incorporation of Expansion Space
If tenant leases expansion Space under this Item 5, tenant shall be delivered
possession of such space with improvements provided by landlord completed
pursuant to Section I of Exhibit B of this lease, and such space shall become
incorporated into the Premises (a) on the requested Possession date, if leased
under Item 5(A), or (b) if leased under Item 5 (B), on the commencement date
that was proposed in the Prospective Tenants offer, or, if no commencement date
was set forth in such offer on a date selected by Tenant which date shall be no
earlier than one full calendar month after the date Tenant notifies Landlord of
its electing to lease such expansion space and no later than 2 full months after
the date of such notice ("Expansion Space Commencement Date"). Such leasing
shall be upon all the term sand conditions of this lease that then apply to the
portion of the Premises previously leased by Enact (e.g., the rental rate shall
be Tenant's then current rental rate for the portion of the Premises previously
leased by Tenant and subject OT the same increases as apply to the portion of
the Premises previously leased by Tenant; the Base Year shall be the same as the
Base Year that is applicable to the portion of the Premises previously leased by
Tenant; and Tenant shall be entitled to additional parking spaces, as provided
in Item 2 of this Exhibit C) except that (I) Tenant shall be entitled to a
Tenant Improvement Allowance for the Expansion Space totaling 62.50CENTS per
rentable square foot of Expansion Space multiplied by the number of months
remaining in the initial Lease term and Extended Term for which Tenant has
previously exercised its option under Item 6 of this Exhibit C (computed as of
the Expansion Space Commencement Date), but the Tenant Improvement Allowance
for the Expansion space shall in no case be greater than $30.00 per rentable
square foot of the Expansion Space (Landlord shall apply the Tenant Improvement
Allowance for the Expansion Space in Accordance with Item VI (B) of Exhibit B);
(ii) Tenant shall be entitled to a Relocation Allowance for the Expansion Space
totaling 8.33CENTS per rentable square foot of Expansion Space multiplied by the
number of months remaining in the initial lease term and any Extended Term for
which Tenant has previously exercised its option under Item 6 of this Exhibit C
(computed as of the Expansion Space Commencement Date), but the Relocation
Allowance for the Expansion Space shall in no case be greater than $4.00 per
rentable square foot of Expansion Space (Landlord shall pay the relocation
allowance for the expansion space of the date that tenant becomes obligated to
begin paying rent and additional rent for such rentable square foot of space in
accordance with Item 2 of this Exhibit C); (ii) Tenant shall have no obligation
to pay rent or addition rent for he period commencing on the expansion space
commencement date and expiring on the earlier of (A) the date that tenant
occupies such space for Permitted uses or (b) the 90th day following the
expansion space commencement date (except that tenant shall be obligated to pay
Additional rent for utilities and insurance while it is doing its improvement
work in the Expansion Space and (iv) tenant shall not have the right to
designate any portion of the expansion space as a space pocket.
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D. Space Available Notice Following the First 24 months
On September 1, January 1, and May 1 of each year for the balance of the lease
term following the 24th month, Landlord shall notify Tenant in writing of the
space then available on the 12th floor. Tenant shall have 10 working days to
accept in writing to lease such 12th floor space. Should Tenant fail to notify
Landlord in writing of its intent to lease such 12th floor space within the 10-
working-days notification period, Tenant shall be deemed to have elected not to
lease such space at such time. However, if prior to the next notification date,
landlord received an offer to lease any space on the 12th floor from a
prospective tenant, landlord shall again notify Tenant as described in 5 (B)
"right of First Refusal" Section 5 (B) of this Exhibit C.
E. Personal to Tenant
The options provided for in this Item 5 are personal to Tenant and my be
exercised only by Tenant.
6. Option to Extend the Term of the Lease
Provided tenant is not in default of an term of condition of this lease at the
time its exercises it option under this Item 6, tenant shall have options to
extend the term of this lease for up to 3 additional periods of 2 years each
(which shall be called the "First Extended Term", the "Second extended Term",
and the "Third Extended Term", respectively.) The first extended term shall
commence on the day after the expiration date specified in section 1 (f) of this
Lease; the second extended term shall commence on the day after the first extend
term expires; and the third extended term shall commenced on the day after the
second extended term expires. The options provided for in this Item 6 are
personal to Tenant and my be exercised only by tenant. In order to exercise its
option to renew this lease for a particular extended term, tenant shall deliver
to landlord written notice no later than 10 months prior to the end of the
previous Term. during each extended term, all the terms and conditions as are
contained this lease shall apply except that:
(a) Rent as set forth in Section 1 (g) above shall be 95% of the Fair
Market Rate (defined below);
(b) The Base Year for such Extended Term shall be the calendar year in
which the Extended Term commences; and
(c) No further Space Pockets shall be defined.
"Fair market Rate" shall mean the projected fully serviced fair market
rental rate at the commencement of the Extended Term for space in the Building
and in comparable first-class office buildings of similar size and stature in
downtown Seattle, Washington, for a comparable term and with a comparable base
year.
landlord and Tenant shall seek to agree as to the Fair Market Rate within
30 days after Tenant gives landlord notice of its election to renew this Lease.
If landlord and Tenant shall not agree as to the FMR within such 30-day period
the FMR shall be determined by appraisal as follows: Within 5 days after the
expiration of the above mentioned 30-days waiting period an arbitrator shall be
mutually selected who is an MAI-designated appraiser in the City of Seattle with
at least 10 years' experience in appraising commercial office buildings in the
Seattle central business district. The arbitration shall be conducted as a
"baseball" arbitration whereby landlord and tenant shall each submit to the
arbitrator a specific fair market rate, and the arbitrator shall be obligated
select from he two rates submitted by the parties the one rate most closely
related to FMR (and the arbitrator shall not be allowed to compromise or
otherwise determine different amount). The arbitration shall be completed
within 10 business days following selection of an arbitrator. If the parties
are unable to agree upon a mutually acceptable arbitrator, then either party may
request that the president of the Seattle Chapter of the Appraisal Institute (or
its successor) designate a qualified arbitrator to so serve. The costs of nay
arbitrator shall be evenly split between Landlord and Tenant. The arbitrators
decision shall be delivered in writing and Landlord and Tenant and shall be
binding upon Landlord and Tenant, not subject to appeal.
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7. Building Security
Landlord shall provide Tenant access to the Premises 24 hours per day, 365 days
per ear, via the Building's security access system. Landlord shall provide each
of Tenant's employees (including those hired after the term of this lease
commences) with one door key to the Premises and one access card at no
additional cost to Tenant.
8. Real Estate Commission
Landlord shall pay a real estate commission to Tenant's agent, Teutsch Partners,
of $128,628.50 ($3.5 per rentable square foot leased by Tenant). One-half of
such commission shall be paid to Teutsch Partners upon the completed execution
of this Lease, one-quarter of such commission shall be paid to Teutsch Partners
upon Tenant's occupancy of the portion of the Premises located on the 10th floor
of the building and the balance of such commission shall be paid to Teutsch
Partners upon Tenant's occupancy of 9,125 net rentable square feet of the
Premises located on the 11th floor of the Building. In addition Landlord shall
pay a commission to Teutsch Partners for any Expansion Space that becomes
incorporated into the Premises during the first 24 months of the Lease term.
The commission for Expansion Space shall be 3% of the gross rent payable for
such expansion space during the initial lease term. Landlord shall pay such
commission to Teutsch Partners upon the tae that Tenant occupies such Expansion
Space. If landlord fails to pay any such commission to Teutsch Partners within
days of the due date, Tenant shall be entitled to pay it, and upon written
notice to Landlord Tenant shall be entitled to deduct the amount pied from the
Rent and Additional Rent that Tenant is obligated to pay Landlord under this
Lease.
9. Cap on Operating Costs
Notwithstanding anything in this Lease to the contrary, for any year during the
initial Term of this Lease, Tenant shall not be obligated to pay to Landlord
Additional Rent for Operating Costs (excluding real estate taxes and utility
costs) in an amount that is greater than Tenant's pro rata share of the amount
by which the following amounts exceed the share of the amount by which the
following amounts exceed the actual base amount (defined in Section 10 (a)) of
the preprinted Lease form): (a) for the second calendar year of the Lease Term
106% of such base amount; (b) for the third calendar year of the Lease Term,
112% of such base amount; (c) for the fourth calendar year of the Lease Term,
118% of such base amount; and (d) for the fifth calendar year of the Lease Term,
124% of such base amount.
10. Tenant's Deck
Without any additional charge to Tenant hereunder, Tenant shall have private and
exclusive use of the deck that is located adjacent to the Premises on the 10th
floor of the Building. Landlord and Tenant acknowledge that any improvements
whatsoever to be made to made to such deck must have Landlord's prior written
approval, which shall not be unreasonably withheld or delayed, and shall be
considered given if not denied in writing within 19 business days tenant's
request. The area comprising the deck shall not be included in the calculation
of the rentable square-foot area of the Premises for any purpose.
11. Real Estate Taxes; Operating Costs Arbitration
Notwithstanding anything in this Lease to the contrary, "taxes" shall not
include any net income, excise, business and occupation, franchise, corporate,
estate or inheritance tax of payable b the Tenant under this Lease that is in
the nature of a net income tax or business and occupation tax. In addition
notwithstanding anything in this lease to the contrary , the following costs,
charges and expenses of landlord shall not be included among the " operating
costs" for which Tenant is responsible under this Lease:
(a) leasing commissions and other costs of seeking to rent space;
(b) managing agents' fees or commissions in excess of the rates then
customarily charged for property management for buildings of like class and
character to the Building;
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(c) executives' salaries above the grade of property manager;
(d) amounts received by landlord through proceeds of insurance to the
extent such proceeds are compensation for expenses that were previously included
in the Operating costs hereunder;
(e) cost of repairs or replacements incurred by reason of fire or other
casualty to the extent Landlord is compensated therefor though proceeds of
insurance , or caused by the exercise of the right of eminent domain.
(f) consulting fees (unless the consulting services involved benefit all
tenants of the Building), marketing fees, advertising and promotional
expenditures;
(g) legal fees for disputes with tenants and legal and auditing fees,
other than legal and auditing fees reasonably incurred in connection with the
maintenance and operation of the Premises or in connection with the preparation
of statements required pursuant to additional rent or lease escalation
provisions;
(h) costs incurred in performing work or furnishing services for
individual tenants (including Tenant) at such tenant's expense to the extent
that such work or service is in excess of any work or service Landlord at its
expense is obligated to furnish to Tenant; costs of performing work or
furnishing services for tenants other than Tenant at Landlord's expense to the
extent that such work or services are in excess of any work or service landlord
is obligated to furnish to Tenant at landlord's expense;
(I) principal and interest payments on loans secured by mortgages or deed
of trust on, or assignments of rent from, all or any portion of the Building;
(j) depreciation;
(k) penalties due to any violation of law by landlord or other tenants;
(l) costs of preparing tenant space for tenant occupancy;
(m) costs of any utilities, services or capital improvements relating to
all or any portion of the Premises that were paid directly by Tenant or any
other tenant;
(n) costs allocable to properties other than the building in which the
Premises are located in which Landlord has an interest;
(o) structural repairs or replacements; and
(p) rent payable in connection with any ground or underlying lease.
The statements furnished to Tenant by landlord, which Tenant shall keep
confidential and which shall be itemized and contain such supporting
documentation as Tenant may reasonable request, shall constitute a final
determination as between landlord and Tenant of Operating costs for the period
represented thereby, unless Tenant,, within 10 working days after they are
furnished, shall give a notice to Landlord that it disputes their accuracy or
their appropriateness, which notice shall specify the particular respects in
which the statement is inaccurate or inappropriate. If landlord and Tenant are
unable to resolve Tenant's dispute with 10 working days, any such dispute shall
be resolved by arbitration s follows an arbitrator shall be mutually selected
who is an MA(designated appraiser in the City of Seattle with at least 10 years'
experience in appraising commercial office buildings in the Seattle central
business district. The arbitration shall be conducted as a "baseball"
arbitration whereby Landlord and Tenant shall each submit to
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the arbitrator its determination of operating costs, and the arbitrator shall be
obligated to select from the two determinations submitted by the parties the one
most closely related to operating costs which in accordance with generally
accepted accounting and management practices would be considered the expenses of
maintaining, operating, or repairing the Building (and the arbitrator shall not
be allowed to compromise or otherwise make a different determination). The
arbitration shall be completed within 10 business days following selection of an
arbitrator. If the parties are unable to agree upon a mutually acceptable
arbitrator, then either party may request that the president of the Seattle
Chapter of the Appraisal Institute (or its successor) designate a qualified
arbitrator to so serve. The costs of any arbitrator shall be evenly split
between Landlord and Tenant. The arbitrator's decision shall be delivered in
writing to Landlord and Tenant and shall be binding upon resolution of such
dispute, Tenant shall pay additional rent to landlord in the amounts as landlord
outlined in the statement that is the subject of such dispute. Within 30 days
after the resolution of such dispute, landlord shall pay to tenant any overage
in additional rent found by the arbitrator.
12. Assignment and Subletting
Notwithstanding anything in this lease to the contrary, Landlord hereby consents
to an assignment of this Lease, or a sublease of all or part of the Premises to
the parent of Tenant or to a wholly-owned subsidiary of Tenant or of such
parent, or to any corporation into or with which Tenant may be merged or
consolidated, or to any joint venture or partnership Tenant may enter into in
connection with the business to be operated on the Premises; provided that, in
the case of a merger or consolidation, the net worth of the resulting
corporation is at least equal to the greater of (a) the net worth of Tenant on
the ate hereof or (b) the net worth of Tenant immediately prior to such merger
or consolidation; provided, further, any such assignment of Lease shall contain
an assumption of all of the terms, covenants and conditions of this Lease to be
performed, and any subtenant shall agree to perform all applicable provisions of
this lease to be performed by Tenant. Tenant agrees that no such assignment or
subletting shall be effective unless and until Tenant gives landlord written
notice thereof, together with a true copy of the assignment or of the sublease.
13. Hazardous Wastes
Landlord represents and warrants to Tenant that neither the Premises nor any
portion of the Building nor the real property upon which the building is located
contains hazardous wastes or hazardous materials in violation of the legal
limitations imposed by laws applicable to the Building as of the date of this
lease. Landlord agrees to indemnify an hold Tenant harmless from and against
any and all loss damage, claims,, penalties, liability, suits, costs and
expenses (including, without limitation, reasonable attorneys' fees) and also
including, without limitation, costs of remedial action or cleanup, suffered or
incurred by Tenant arising out of or related to any release or presence of
hazardous wastes or materials on, under or in the Premises, the Building or the
real property upon which the Building is located, unless such release or
presence is due to the acts or omissions of Tenant, its agents and employees.
The term "hazardous wastes or materials" means any substance, waste or material
defined as hazardous, toxic or dangerous by any federal , state or local
statute, rule, ordinance or regulation now in effect and shall specifically
include asbestos containing materials, PCB's and petroleum or hydrocarbon
products.
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Exhibit 10.17
-------------
REAL ESTATE
PURCHASE AND SALE AGREEMENT
between
THE PORT OF SEATTLE
as Seller
and
IMMUNEX CORPORATION
as Buyer
for
TERMINAL 88
SEATTLE, WASHINGTON
July 18, 1994
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CONTENTS
Page Numbers
1. Property; Legal Description ........................................5
1.1 Property .......................................................5
1.2 Legal Description .............................................6
2. Deposits; Purchase Price; Carrying Costs; Title ....................6
2.1 Earnest Money Deposits .........................................6
2.1.1 Initial Deposit ..........................................6
2.1.2 Additional Deposit .......................................6
2.1.3 Deposits, Generally ......................................6
2.2 Purchase Price .................................................6
2.3 Carrying Costs .................................................6
2.4 Statutory Warranty Deed; Title Policy ..........................7
3. Funding Sources; Master Use Permit; Environmental Issues;
Easement Agreement .................................................7
3.1 Funding Sources ................................................7
3.2 Master Use Permit ..............................................8
3.3 Environmental Issues ...........................................8
3.4 Easement Agreement .............................................8
4. Conditions to Closing ..............................................8
4.1 Due Diligence Materials ........................................8
4.2 Due Diligence Period ...........................................10
4.3 Buyer's Contingencies ..........................................10
4.4 Satisfaction/Waiver of Buyer's Contingencies ...................12
4.5 Seller's Contingencies .........................................12
4.6 Satisfaction/Waiver of Seller's Contingencies ..................12
5. Leases; Contracts ..................................................13
5.1 Leases .........................................................13
5.2 Contracts ......................................................13
6. Escrow and Closing .................................................13
6.1 Escrow .........................................................13
6.2 Closing Date ...................................................13
6.3 Closing ........................................................13
6.3.1 Seller's Escrow Deposits .................................13
6.3.2 Buyer's Escrow Deposits ..................................15
6.3.3 Additional Instruments and Documentation .................15
6.4 Prorations .....................................................15
6.5 Closing Costs ..................................................15
7. Representations and Warranties .....................................16
7.1 Seller's Representations and Warranties.........................16
7.2 Buyer's Representations and Warranties .........................17
8. Indemnification ....................................................17
8.1 Generally ......................................................17
8.2 By Buyer .......................................................17
8.3 Procedure.......................................................17
8.4 Survival .......................................................18
9. Loss by Casualty; Condemnation .....................................18
10. Possession .........................................................18
11. Maintenance of the Property ........................................18
12. Buyer's Consent to New Contracts Affecting the Property ............18
12.1 Generally .....................................................18
12.2 Seller's Reserved Rights ......................................19
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13. Events of Default ..............................................19
13.1 By Seller..................................................19
13.2 By Buyer ..................................................19
14. Notices.........................................................19
15. Brokers and Finders ............................................20
16. Right of First Opportunity .....................................20
17. Successors and Assigns .........................................21
18. Amendments .....................................................21
19. Continuation and Survival of Representations and Warranties ....21
20. Governing Law ..................................................21
21. Entire Agreement ...............................................21
22. Enforcement ....................................................21
23. Time of the Essence ............................................21
24. Exclusivity ....................................................21
25. Counterparts ...................................................21
26. Waiver .........................................................21
27. Confidential Information .......................................21
28. Good Faith .....................................................22
EXHIBITS
EXHIBIT A Legal Description ............................................ 23
EXHIBIT B Earnest Money Note ........................................... 25
EXHIBIT C Restrictive Agreements ....................................... 26
EXHIBIT D Assignment and Assumption of Leases .......................... 27
EXHIBIT E Assignment and Assumption of Contracts ....................... 30
EXHIBIT F Tenant Estoppel Certificate .................................. 33
EXHIBIT G Reciprocal Easement Estoppel Certificate ..................... 36
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TABLE OF DEFINITIONS
DEFINED TERM SECTION
NUMBER
Additional Deposit 2.1.2
Additional Note 2.1.2
Agreement Preamble
Appurtenances l(b)
BN 4 3(j)
Buyer Preamble
Buyer's Contingencies 4.3
Buyer's Notice 16
Closing Date 6.2
Code 6.3.1(h)
Contract Assignment 6.3.1(d)
Contracts 4.1 (e)
DCLU 4.1(c)
Deed 2.4
Deposits 2.1.3
Due Diligence Materials 4.1
Due Diligence Notice 4.1
Due Diligence Period 4.2
Easement Agreement 3.4
Escrow Agent 6.1
Fair Market Value 16
Glacier Park 4. l(j)
Hazardous Substance 7.1(k)
Improvements l(c)
Initial Deposit 2.1.1
Initial Note 2.1.1
Intangible Property l(d)
Lease Assignment 6.3.1(c)
Leases 4.1 (d)
Master Use Permit 3.2
Permits 4.1 (i)
Preliminary Commitment 4.1(a)
Property 1
Property Inspection 4.3(e)
Purchase Price 2.2
Real Property Recitals
Restrictive Agreements 4.1 (b)
Seller Preamble
Seller's Contingencies 4.5
Survey 4.1 (c)
Terminal 86 3.4
Title Company 2.1.1
Title Policy 2.4
UCC 4.1 (k)
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REAL ESTATE
PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("Agreement") is made and
entered into as of July 18, 1994, by and between THE PORT OF SEATTLE, a
Washington special purpose municipal corporation ("Seller"), and IMMUNEX
CORPORATION, a Washington corporation ("Buyer").
RECITALS
A. Seller owns approximately 29 acres of real property known as Terminal
88, as more particularly described on EXHIBIT A attached hereto and made a part
hereof ("Real Property").
B. Buyer desires to purchase, and Seller desires to sell, the Real Property
on the terms set forth in this Agreement.
AGREEMENT
IN CONSIDERATION of the respective agreements hereinafter set forth, Seller
and Buyer agree as follows:
1. PROPERTY; LEGAL DESCRIPTION
1.1 PROPERTY. Seller shall sell and convey to Buyer, and Buyer shall
purchase from Seller, subject to the terms and conditions set forth herein, the
following (collectively, "Property"):
(a) the Real Property;
(b) all of Seller's right, title and interest in any rights, licenses,
privileges and easements appurtenant to the Real Property, including, without
limitation, all minerals, oil, gas and other hydrocarbon substances on and under
the Real Property, as well as all development rights, permits, approvals, air
rights, water, water rights and water stock relating to the Real Property and
any easements, rights-of-way and appurtenances used in connection with the
beneficial use and enjoyment of the Real Property (collectively,
"Appurtenances");
(c) all of Seller's right, title and interest in all improvements and
fixtures located on the Real Property, including, without limitation, all
buildings, piers, docks, pilings and other structures located on the Real
Property and all apparatus, equipment and appliances used m connection with the
operation or occupancy of the Real Property, including, without limitation, all
plumbing, heating, air-conditioning and electrical equipment and facilities used
to provide any utility services or other services to the Real Property
(collectively "Improvements"); and (d) all of Seller's interest in any
intangible property used in the ownership, use or operation of the Real Property
or Improvements, including, without limitation, and, except for trade names of
Seller and as otherwise provided in this Agreement, any contracts, leases,
agreements and other rights relating to the ownership, use or operation of the
Real Property or Improvements (collectively, "Intangible Property").
1.2 LEGAL DESCRIPTION. Seller and Buyer acknowledge that (a) the Survey has
not been completed as of the date hereof and (b) it may be necessary to revise
the legal description for the Real Property set forth in EXHIBIT A when the
Survey is completed. Seller and Buyer agree that if such legal description
requires revision, the revised legal description shall be incorporated into this
Agreement, provided it is approved by Seller and Buyer in writing.
2. DEPOSITS; PURCHASE PRICE; CARRYING COSTS; TITLE
2.1 EARNEST MONEY DEPOSITS
2.1.1 INITIAL DEPOSIT. Buyer shall make an earnest money deposit in the
amount of Four Hundred Six Thousand Eight Hundred Dollars ($406,800) ("Initial
Deposit"). The Initial Deposit shall be deposited in trust with Transamerica
Title Insurance Company, 1200 Sixth Avenue, Seattle, Washington 98101 ("Title
Company"), together with a copy of this Agreement, immediately after this
Agreement is executed by all parties. The Initial Deposit shall be in the form
of a promissory note substantially the same in form and content as EXHIBIT B
attached hereto and made a part hereof
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("Initial Note") and shall be made by Buyer payable to the order of Title
Company. The Initial Note shall be converted to cash if and when all of Buyer's
Contingencies set forth in Sections 4.3 (a)-(f) are either satisfied or waived
in accordance with Sections 4.3 and 4.4. Upon conversion to cash, Title Company
shall invest the Initial Deposit in interest bearing instruments or accounts
that are acceptable to both Seller and Buyer.
2.1.2 ADDITIONAL DEPOSIT. Buyer shall make an additional earnest money
deposit in the amount of Two Hundred Seventy One Thousand Two Hundred Dollars
($271,200) ("Additional Deposit") within 5 business days after Buyer's
Contingency set forth in Section 4.3 (g) is satisfied. If such Buyer's
Contingency is satisfied before the expiration of the Due Diligence Period, the
Additional Deposit shall be in the form of a promissory note substantially the
same in form and content as the Initial Note ("Additional Note"). The Additional
Note shall be made by Buyer payable to the order of Title Company. The
Additional Note shall be converted to cash if and when all of Buyer's
Contingencies set forth in Sections 4.3 (a)-(f) are either satisfied or waived
in accordance with Sections 4.3 and 4.4. Upon conversion to cash, Title Company
shall invest the Additional Deposit in interest bearing instruments or accounts
that are acceptable to both Seller and Buyer. If Buyer's Contingency set forth
in Section 4.3 (g) is satisfied after the expiration of the Due Diligence
Period, the Additional Deposit shall be paid in cash and deposited in trust with
Title Company, and Title Company shall invest it in interest bearing instruments
or accounts that are acceptable to both Seller and Buyer.
2.1.3 DEPOSITS, GENERALLY. The Initial Deposit and Additional Deposit
(collectively "Deposits") shall be credited toward the Purchase Price. Interest
on the Deposits shall accrue to the benefit of and be payable to Seller unless
(a) this Agreement is terminated because Buyer's Contingencies set forth in
Sections 4.3 (i)-(l) have not been timely satisfied, or (b) such Buyer's
Contingencies are not timely satisfied, but Buyer waives them and proceeds with
the purchase of the Property, in either of which cases interest on the Deposits
shall accrue to the benefit of and be payable to Buyer.
2.2 PURCHASE PRICE. The purchase price for the Property shall be Thirteen
Million Five Hundred Sixty Thousand Dollars ($13,560,000) ("Purchase Price") and
shall be paid to Seller at closing in cash or immediately available funds.
2.3 CARRYING COSTS. Buyer shall pay to Seller carrying costs for the
Property at the rate of 7.25% of the Purchase Price per annum, compounded
annually, for the period beginning on the date of this Agreement and ending on
the earlier of (a) the day before the
Closing Date or (b) January 31, 1996. Buyer shall pay carrying costs for the
Property at the rate of 3.625% of the Purchase Price per annum, compounded
annually, for the period beginning on February 1, 1996 and ending on the day
before the Closing Date if, due to an extension under Section 4.4 (b), the
Closing Date does not occur on or before February 1, 1996. Buyer shall pay the
accrued carrying costs in a lump-sum at closing. If closing fails to occur for
any reason, Buyer ,shall have no obligation to pay any carrying costs for the
Property.
2.4. STATUTORY WARRANTY DEED; TITLE POLICY. At closing, Seller shall convey
to Buyer fee simple title to the Property by duly executed and acknowledged
statutory warranty deed satisfactory in form and substance to Buyer ("Deed"),
free and clear of all defects and encumbrances and subject to no exceptions
other than (a) real property taxes and installments of assessments not yet due
or payable as of the Closing Date, (b) easements, servitudes or installations
that are not disclosed by the public records, (c) unpatented mining claims,
reservations or exceptions in patents or in acts authorizing the issuance
thereof, Indian treaty or aboriginal rights, including, but not limited to,
easements and equitable servitudes, and water rights, claims or title to water,
whether or not the matters excepted under this clause (c) are shown by the
public records, (d) the right of use, control or regulation by the United States
of America in the exercise of powers over navigation and any prohibition or
limitation on the use, occupancy or improvement of the Real Property resulting
from the rights of the public or riparian owners to use any waters that may
cover the Real Property or to use any portion of the Real Property that is now
or may formerly have been covered by water, (e) any service, installation,
connection, maintenance or construction charges for sewer, water, electricity or
garbage collection or disposal or other utilities, unless disclosed as an
existing lien by the public records, (f) those title exceptions that Buyer
approves pursuant to Section 4.3(a), and (g) the Leases. (The exceptions
described in items (a) through (g) of this Section 2.4 are collectively referred
to as "Permitted Exceptions".) If Seller is not permitted to deliver a statutory
warranty deed due to a requirement of law, the Deed may be a special warranty
deed satisfactory in form and substance to Buyer. Seller shall cause Title
Company to commit to issue to Buyer at closing, and to issue to Buyer as soon as
available after closing, an ALTA extended 1992 form owner's policy of title
insurance for
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the Property in the full amount of the Purchase Price, subject only to the
Permitted Exceptions ("Title Policy"). Seller shall pay a portion of the premium
for the Title Policy equal to the cost of providing standard coverage, and Buyer
shall pay the balance of the premium for the Title Policy. The Title Policy
shall be dated as of the Closing Date, shall provide full coverage against
mechanics' and materialmen's liens arising out of the construction, repair or
alteration of any of the Improvements done by or on behalf of anyone other than
Buyer and shall contain such special endorsements as Buyer may reasonably
require. Any additional premium charged by reason of such special endorsements
shall be paid by Buyer. If Title Company is unwilling or unable to issue any
special endorsements requested by Buyer beyond the standard terms of an extended
coverage policy, then Buyer may, as its sole remedy, proceed to closing without
the endorsements or elect to terminate this Agreement by written notice to
Seller and Escrow Agent.
3. FUNDING SOURCES; MASTER USE PERMIT; ENVIRONMENTAL ISSUES;
EASEMENT AGREEMENT
3.1 FUNDING SOURCES. Seller and Buyer acknowledge that Buyer's intended use of
the Property will require access improvements to be made so that there is
24-hour per day, unobstructed vehicular and truck access to the west side of the
Burlington Northern railroad tracks, where the Property is located, and such
other access as may be required by the appropriate permitting authorities.
Seller and Buyer acknowledge that the cost of such improvements is currently
estimated to be Twelve Million Dollars ($12,000,000), but that the actual cost
may be as high as Twenty-Five Million Dollars ($25,000,000) if access for large
trucks is required by the appropriate permitting authorities. Commencing on the
date of this Agreement, Seller shall use reasonable efforts to assist Buyer in
securing written commitments, satisfactory to Buyer, for funding for 100% of the
actual cost of such improvements. Notwithstanding the foregoing, Seller shall
not be obligated to enter into any third-party agreement in connection with
securing such funding that would commit Seller to improve or participate in
funding such access to the Property if Seller and Buyer fail to close the
purchase and sale hereunder.
3.2 MASTER USE PERMIT. Seller and Buyer acknowledge that Buyer's intended
use of the Property will require Buyer to obtain a master use permit from the
City of Seattle ("Master Use Permit"). Commencing on the date of this Agreement,
Buyer shall use reasonable efforts to obtain a Master Use Permit for Buyer's
intended use of the Property. Seller shall cooperate with and assist Buyer in
obtaining such Master Use Permit, and shall execute such documents and
applications, attend such meetings and hearings and provide such information
about the Property as may be necessary or desirable in connection therewith.
Notwithstanding the foregoing, Seller shall not be obligated to enter into any
third-party agreement in connection with obtaining the Master Use Permit that
would commit Seller to take any action in connection with the Master Use Permit
if Seller and Buyer fail to close the purchase and sale hereunder. Buyer shall
pay all costs and expenses associated with obtaining the Master Use Permit
(including, without limitation, all costs and expenses associated with preparing
an environmental impact statement) and, upon presentation of paid receipts,
Buyer shall reimburse Seller for costs and expenses incurred by Seller in
cooperating and assisting Buyer in connection therewith, except for salaries of
Seller's employees, Seller's attorneys' fees and the fees of any consultants of
Seller not approved in advance by Buyer.
3.3 ENVIRONMENTAL ISSUES. Seller has been informed, but does not warrant,
that the Property is in compliance with State of Washington Model Toxic Control
Act Method C clean-up levels (industrial uses). If Buyer determines that the
environmental condition of the Property is unsatisfactory to Buyer, and elects
to proceed with the purchase of the Property nonetheless, Buyer shall have the
right to clean up the Property to its satisfaction prior to closing and to
extend the Closing Date until such cleanup is completed. Buyer shall diligently
pursue to completion any environmental cleanup that it commences under this
Section 3.3.
3.4 EASEMENT AGREEMENT. Buyer acknowledges that, after the Closing Date,
Seller will require an easement across the Real Property for ingress to and
egress from the parcel of land that is commonly known as Terminal 86 ("Terminal
86"), which is owned by Seller and is adjacent to the Real Property and upon
which a grain terminal is located. Promptly after this Agreement has been
executed by both parties, Seller and Buyer shall begin to negotiate in good
faith an easement agreement, which shall be executed and delivered at closing,
that will provide such ingress to and egress from Terminal 86 ("Easement
Agreement").
4. CONDITIONS TO CLOSING
4.1 DUE DILIGENCE MATERIALS. Seller shall, at Seller's expense, provide to
Buyer, or make available to Buyer for inspection, as soon as possible after the
date hereof (but no later than 30 days after the date hereof, except as
otherwise provided in this Section 4.1), the following materials (collectively,
"Due Diligence Materials"):
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(a) a preliminary commitment for the Title Policy, accompanied by
copies of all documents referred to therein ("Preliminary Commitment");
(b) copies of any existing and proposed easements, covenants,
restrictions, agreements or other documents that, to Seller's knowledge, affect
title to the Property (collectively, "Restrictive Agreements") and that are not
disclosed by the Preliminary Commitments, including, without limitation, the
Restrictive Agreements listed on EXHIBIT C attached hereto and made a part
hereof;
(c) an ALTA as-built survey of the Property by a State of Washington
licensed surveyor or civil engineer ("Survey"), which shall be delivered to
Buyer no later than 60 days after the date of this Agreement. The Survey shall
be acceptable and certified to Buyer and Title Company and shall be in
sufficient detail to provide the basis for obtaining the Title Policy and shall
show the location of all easements (including easements for underground and
underwater Improvements as to which Seller or the surveyor has knowledge or the
existence of which is disclosed in documents of record or known to Seller or the
surveyor) and Improvements (including equipment and facilities used to provide
utility services) and any and all other pertinent information with respect to
the Property that would customarily be included in an ALTA as-built survey. The
Survey shall also demarcate the shoreline, as specified in Director's Rule 23-88
of the State of Washington Department of Construction and Land Use ("DCLU"), and
any encroachments of Improvements onto easements or onto adjacent properties, or
certify to their absence, and shall indicate the presence of easements and
improvements (including equipment and facilities used to provide utility
services) on property adjoining the Property if located within 5 feet of the
boundaries of the Property. The boundary lines of the Property and the
shoreline, as specified in Director's Rule 23-88 of the DCLU, shall be staked,
at Seller's expense, no later than 30 days after the date of this Agreement;
(d) (i) all existing leases and rental agreements (and amendments
thereto) affecting the Property under which Seller holds the landlord's interest
(such leases and rental agreements, together with any leases or rental
agreements and amendments thereto that Buyer approves in accordance with Section
12.2, are collectively referred to as "Leases"), (ii) all licenses (and
amendments thereto) affecting the Property and (iii) all correspondence and
other writings relating to the Leases and such licenses;
(e) all service contracts, maintenance contracts, management
contracts, certificates of occupancy, warranties and guaranties and other
contracts and documents (and amendments thereto) relating to the Property
(collectively, "Contracts").
(f) (i) all monthly and year-end financial statements relating to the
Property that have been prepared by or for Seller, including, but not limited
to, balance sheets and statements of operations for the Property, from the date
Seller became the owner of the Property through the present, which shall be
prepared by Seller or Seller's accountants in accordance with generally accepted
accounting principles and certified by Seller as true and correct, and such
additional financial information relating to the Property as Buyer shall
reasonably request, including, but not limited to, accounts receivable, general
ledgers and copies of selected invoices; and (ii) all annual operating
statements for all tenants of the Property, from the date Seller became the
owner of the Property to the present, that Seller has in its possession;
(g) (i) current casualty, liability and other insurance policies
affecting the Property and (ii) any pending and past claims filed against any
casualty, liability and other insurance policies affecting the Property;
(h) all documents in Seller's possession relating to any existing or
threatened litigation or condemnation affecting or relating to the Property;
(i) (i) all governmental, administrative or private licenses, permits,
approvals, certificates, agreements, rights and privileges obtained or held by
Seller and relating to (A) the construction, operation, use or occupancy of any
part of the Property or (B) zoning, comprehensive plan, land-use, subdivision,
environmental, building and construction laws and regulations restricting,
regulating or otherwise affecting the use, occupancy or enjoyment of the
Property (collectively, "Permits") and (ii) any notices of violation of any
Permits, or of any of the laws and regulations described in clause (i)(B) of
this Section 4.1(i);
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(j) (i) all environmental assessment reports and investigations with
respect to the Property that Seller has in its possession (Seller shall use best
efforts to obtain and deliver to Buyer any such reports and investigations that
were done by or for the federal government), (ii) all raw data in Seller's
possession that relates to the environmental condition of the Property, (iii)
all contracts and agreements in Seller's possession (including, without
limitation, any contracts or agreements between Seller and Glacier Park Company,
a Delaware corporation, the previous owner of portions of the Property ("Glacier
Park")) and all governmental correspondence, orders, requests for information or
action and other legal documents in Seller's possession that relate to the
presence or removal of Hazardous Substances on, in or under the Property, (iv)
any other information in Seller's possession relating to the physical and
environmental condition or potential contamination of the Property and (v) any
information in Seller's possession relating to the environmental condition or
potential contamination of any property adjacent to the Property;
(k) all security agreements and Uniform Commercial Code ("UCC")
financing statements affecting the Property;
(1) all reports in Seller's possession on the physical, structural and
mechanical condition of the Property, including, without limitation, reports on
the plumbing, heating, air conditioning and electrical systems and elevators;
and
(m) all other materials reasonably requested by Buyer.
Upon Seller's providing Buyer with all the Due Diligence Materials, Seller
shall deliver to Buyer a written notice ("Due Diligence Notice") setting forth
Seller's representation and warranty that all the Due Diligence Materials
required to be delivered hereunder have been provided to Buyer or made available
to Buyer for inspection. If Seller, after the date of the Due Diligence Notice,
discovers any additional items that should have been included among the Due
Diligence Materials, Seller shall immediately deliver such items to Buyer.
4.2 DUE DILIGENCE PERIOD. Buyer shall have a period of 180 days within
which to conduct its due diligence investigation of the Property ("Due Diligence
Period"). The Due Diligence Period shall commence on the date that Seller
delivers the Due Diligence Notice to Buyer. Notwithstanding the foregoing, if
Seller delivers any material Due Diligence Materials to Buyer after the date
that Seller delivers the Due Diligence Notice to Buyer, Buyer shall have a
period of up to 180 days from the date such Due Diligence Materials are
delivered to conduct its due diligence investigation of the Property with
respect to the matters covered by such Due Diligence Materials.
4.3 BUYER'S CONTINGENCIES. The occurrence or waiver by Buyer of the
following events (collectively, "Buyer's Contingencies") shall be conditions
precedent to Buyer's obligation to purchase the Property:
(a) Buyer's review and approval, before the expiration of the Due Diligence
Period, of matters affecting title to the Property as follows: Buyer shall
advise Seller, within 60 days after the commencement of the Due Diligence
Period, what exceptions to title (i.e., exceptions set forth in the Preliminary
Commitment and exceptions evidenced by the Restrictive Agreements to the extent
not set forth as exceptions in the Preliminary Commitments), if any, will be
accepted by Buyer. Seller shall have 60 days after receipt of Buyer's objections
to give Buyer notice (i) that Seller will remove all objectionable exceptions
from title or (ii) that Seller elects not to cause any such exceptions to be
removed. If Seller fails to give Buyer notice before the expiration of such
60-day period, Seller shall be deemed to have elected not to cause such
objectionable exceptions to be removed. If Seller elects not to cause such
objectionable exceptions to be removed, Buyer shall have until the expiration of
the Due Diligence Period to notify Seller of Buyer's election to either proceed
with the purchase and take the Property subject to such exceptions, or to
terminate this Agreement. If Buyer fails to give Seller notice of its election
before the expiration of the Due Diligence Period, Buyer shall be deemed to have
elected to terminate this Agreement. If Seller gives notice that it will cause
one or more objectionable exceptions to be removed and fails to remove any such
objectionable exceptions from title on or before the Closing Date, Buyer shall
have the right to either (A) elect to terminate this Agreement by written notice
to Seller and Escrow Agent or (B) proceed with the purchase, with an abatement
of the Purchase Price equal to the actual cost of removing such objectionable
exceptions from title, and take the Property subject to such exceptions. Buyer's
failure to provide notice of its election to terminate this Agreement on or
before the Closing Date shall constitute Buyer's election to proceed with the
purchase;
(b) Buyer's review and approval, before the expiration of the Due
Diligence Period, of the terms, conditions and expiration dates of all land use
and environmental Permits and approvals for the Property then in existence;
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(c) Buyer's review and approval, before the expiration of the Due
Diligence Period, of the Survey and all other Due Diligence Materials;
(d) Buyer's review and approval, before the expiration of the Due
Diligence Period, of the credit worthiness of all tenants and licensees of the
Property;
(e) Buyer's inspection and approval, before the expiration of the Due
Diligence Period, of the physical condition of the Property ("Property
Inspection"), which may take place at any reasonable time upon reasonable prior
notice to Seller and which may include, without limitation, the performance at
Buyer's expense of soil tests (including borings), Hazardous Substance studies,
surveys, engineering inspections and studies and historical use studies;
(f) Buyer's review and approval of the form and content of the
Easement Agreement before the expiration of the Due Diligence Period;
(g) Buyer's receipt, by the Closing Date, of written commitments,
satisfactory to Buyer, for funding for 100% of the cost of access improvements
required for Buyer's intended use of the Property, as described in Section 3. 1;
(h) Buyer's receipt, by the Closing Date, of a Master Use Permit and
all other land use and environmental permits for Buyer's intended use of the
Property, with terms and conditions that are satisfactory to Buyer, and all
permit appeal periods shall have expired by the Closing Date without any
appeals;
(i) all of Seller's representations and warranties contained in or
made pursuant to this Agreement shall have been true and correct when made and
shall be true and correct as of the Closing Date;
(j) Seller, at Seller's expense, and to Buyer's satisfaction, shall
have removed from the Property prior to the Closing Date all materials and
debris currently stored on the Property by Seller; Seller and Glacier Park
and/or Burlington Northern Railroad ("BN") and/or their affiliates shall have
completed any environmental cleanup of the Property that is currently under way
and any environmental cleanup of the Property that is required pursuant to any
agreements between Seller and Glacier Park and/or BN and/or their affiliates
that relate to any such cleanup; and the physical condition of the Property
shall otherwise be substantially the same on the Closing Date as on the date of
this Agreement, reasonable wear and tear and destruction or damage by casualty
to only the Improvements excepted;
(k) except as disclosed to and approved by Buyer in writing, on the
Closing Date there shall be no outstanding contracts made by Seller for any
improvements to the Property that have not been fully paid, and Seller shall
have caused to be discharged all mechanics' and materialmen's liens arising from
any labor or materials furnished to the Property prior to the Closing Date; and
(1) Seller shall timely perform all of its obligations under this Agreement.
4.4 SATISFACTION/WAIVER OF BUYER'S CONTINGENCIES. Buyer's Contingencies are
solely for the benefit of Buyer. If any of Buyer's Contingencies are not timely
satisfied, Buyer shall have the right, at its sole election, either to waive
such unsatisfied Buyer's Contingencies in writing and proceed with the purchase
or to terminate this Agreement. If Buyer fails to notify Seller in writing
before the expiration of the Due Diligence Period that it is terminating this
Agreement because any of Buyer's Contingencies set forth in Sections 4.3(a)-(f)
have not been timely satisfied, or if Buyer fails to notify Seller in writing on
or before the Closing Date that it is terminating this Agreement because any of
Buyer's Contingencies set forth in Sections 4.3(g)-(1) have not been timely
satisfied, Buyer shall be deemed to have elected to proceed with the purchase
under this Agreement. If Buyer elects to terminate this Agreement because
Buyer's Contingencies set forth in Sections 4.3 (a)-(f) or (i)-(l) have not been
timely satisfied, the escrow shall be terminated, and the Deposits shall
immediately be returned to Buyer. If Buyer elects to terminate this Agreement
because Buyer's Contingencies set forth in Sections 4.3 (g)-(h) have not been
timely satisfied, the escrow shall be terminated, the Initial Deposit shall be
immediately returned to Buyer, and the Additional Deposit (if previously earned)
shall be retained by Seller. In either case, all documents and other funds shall
be returned to the party who deposited them, and neither party shall have any
further rights or obligations under this Agreement, except as otherwise provided
in this Agreement, and except that Seller and Buyer shall each pay one-half of
the cost of terminating the escrow. The Closing Date shall be extended, at
Buyer's request, (a) up to
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30 days if required to allow Buyer's Contingencies set forth in Sections 4.3
(a)-(f) or (i)-(l)to be satisfied, subject to Buyer's further right to terminate
this Agreement upon the expiration of the period of any such extension if all
such Buyer's Contingencies have not been satisfied, and (b) up to 180 days if
required to allow Buyer's Contingencies set forth in sections 4.3 (g)-(h) to be
satisfied, subject to Buyer's further right to terminate this Agreement during
or upon the expiration of such 180-day period if it appears to Buyer that such
Buyer's Contingencies will not be satisfied.
4.5 SELLER'S CONTINGENCIES. The occurrence or waiver by Seller of the
following events (collectively, "Seller's Contingencies") shall be conditions
precedent to Seller's obligation to sell the Property:
(a) Seller's review and approval of the form and content of the
Easement Agreement before the expiration of the Due Diligence Period;
(b) All of Buyer's representations and warranties contained in or made
pursuant to this Agreement shall have been true and correct when made and shall
be true and correct as of the Closing Date; and
(c) Buyer shall timely perform all of its obligations under this Agreement.
4.6 SATISFACTION/WAIVER OF SELLER'S CONTINGENCIES. Seller's Contingencies are
solely for the benefit of Seller. If any of Seller's Contingencies are not
timely satisfied, Seller shall have the right at its sole election either to
waive such unsatisfied Seller's Contingencies in writing and proceed with the
sale or to terminate this Agreement. If Seller fails to notify Buyer in writing
before the expiration of the Due Diligence Period that it is terminating this
Agreement because Seller's Contingency set forth in Section 4.5(a) has not been
timely satisfied, or if Seller fails to notify Buyer in writing on or before the
Closing Date that it is terminating this Agreement because either of Seller's
Contingencies set forth in Sections 4.5(b) and (c) has not been satisfied,
Seller shall be deemed to have elected to proceed with the sale under this
Agreement. If Seller elects to terminate this Agreement because Seller's
Contingencies have not been timely satisfied or waived, the escrow shall be
terminated, the Initial Deposit and the Additional Deposit (if previously
earned) shall be retained by Seller, all documents and other funds shall be
returned to the party who deposited them, and neither party shall have any
further rights or obligations under this Agreement, except as otherwise provided
in this Agreement, and except that Seller and Buyer shall each pay one-half of
the cost of terminating the escrow. The Closing Date may be extended, upon
written agreement of Buyer and Seller, up to 30 days if required to allow
Seller's Contingencies to be satisfied, subject to Seller's further right to
terminate this Agreement upon the expiration of the period of any such extension
if all such Seller's Contingencies have not been satisfied.
5. LEASES; CONTRACTS
5.1 LEASES. Buyer shall assume, from and after closing, all Leases
affecting the Property that are disclosed to Buyer prior to the expiration of
the Due Diligence Period or that Buyer approves in accordance with Section 12.2,
and Seller shall at closing assign such Leases to Buyer. Seller shall, prior to
closing, obtain all consents that are necessary in connection with such
assignment and assumption.
5.2 CONTRACTS. Buyer shall assume, from and after closing, all Contracts
and Restrictive Agreements affecting the Property that are disclosed to and
approved by Buyer prior to the expiration of the Due Diligence Period, and
Seller shall at closing assign such Contracts and Restrictive Agreements and all
warranties, guaranties and Permits relating to the Property to Buyer. Seller
shall, prior to closing, obtain all consents that are necessary in connection
with such assignment and assumption.
6. ESCROW AND CLOSING
6.1 ESCROW. Upon the execution of this Agreement by both parties, the
parties shall deposit with Title Company a copy of this Agreement, and this
Agreement shall serve as the instructions to Title Company as the escrow agent
for consummating the purchase and sale contemplated hereby. (Title Company, when
acting in its capacity as escrow agent, is referred to as "Escrow Agent".)
Seller and Buyer shall execute such additional and supplementary escrow
instructions as may be appropriate or required by Escrow Agent to enable Escrow
Agent to comply with the terms of this Agreement.
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6.2 CLOSING DATE. The closing hereunder shall be held at the offices of
Title Company described in Section 2.1 on February 1, 1996, provided that all of
Buyer's Contingencies and Seller's Contingencies have then been either satisfied
or waived in accordance with Sections 4.3-4.6, or such other date prior thereto
as Seller and Buyer may agree to in writing ("Closing Date").
6.3 CLOSING
6.3.1 SELLER'S ESCROW DEPOSITS. On or before the Closing Date, Seller
shall deposit into escrow the following:
(a) the duly executed and acknowledged Deed;
(b) the duly executed Bill of Sale;
(c) duly executed counterparts of the Easement Agreement;
(d) originals (or copies certified by Seller to be true and complete)
of all Leases (and any amendments thereto), all records and correspondence
relating thereto, all security deposits relating thereto (the amount of which
Buyer may take as a credit against the Purchase Price under Section 6.5) and
duly executed and acknowledged counterparts of an assignment and assumption of
Leases substantially the same in form and substance as EXHIBIT D attached hereto
and made a part hereof ("Lease Assignment");
(e) originals (or copies certified by Seller to be true and complete)
of all Contracts and Restrictive Agreements (and any amendments thereto) to be
continued by Buyer after closing, and originals or copies of any warranties or
guaranties received by Seller from any contractors, subcontractors, suppliers or
materialmen in connection with any construction, repairs or alterations of the
Improvements, originals of all Permits and duly executed counterparts of an
assignment and assumption of Contracts, Restrictive Agreements, warranties and
guaranties, Permits and Intangible Property, substantially the same in form and
substance as EXHIBIT E attached hereto and made a part hereof ("Contract
Assignment");
(f) a UCC search from a reputable search firm indicating that, as of a
date not earlier than one week prior to the Closing Date, there are no filings
against Seller in the office of the Department of Licensing of the State of
Washington that would be a lien on any of the Property (other than such filings,
if any, as are being released at the time of closing or are approved by Buyer in
writing);
(g) duly executed tenant estoppel certificates from all tenants occupying any
portion of the Property, substantially the same in form and substance as EXHIBIT
F attached hereto and made a part hereof and, if previously requested by Buyer,
duly executed estoppel certificates relating to any reciprocal easement
agreements specified by Buyer, substantially the same in form and substance as
EXHIBIT G attached hereto and made a part hereof;
(h) notices of the sale of the Property to be sent to the tenants and
licensees of the Property, in form and substance satisfactory to Buyer;
(i) an affidavit in form and substance satisfactory to Buyer that
Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the
United States Internal Revenue Code ("Code");
(j) a closing statement, to be prepared by Escrow Agent, in form and
substance satisfactory to Buyer and Seller;
(k) any other documents, instruments, records, correspondence and
agreements called for hereunder that have not previously been delivered; and
(1) any consents required to be obtained from any third parties in
order to consummate the purchase and sale under this Agreement, including,
without limitation, a certified copy of the Port Commission approval of the
transaction contemplated by this Agreement.
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Buyer may waive Buyer's right to receive any of the foregoing items by giving
Seller and Escrow Agent written notice thereof.
6.3.2 BUYER'S ESCROW DEPOSITS. On or before the Closing Date, Buyer
shall deposit into escrow the following:
(a) duly executed counterparts of the Easement Agreement;
(b) duly executed counterparts of the Lease Assignment and the
Contract Assignment;
(c) a settlement statement, to be prepared by Escrow Agent, in form
and substance satisfactory to Buyer and Seller; and
(d) all documents and funds required to close escrow.
6.3.3 ADDITIONAL INSTRUMENTS AND DOCUMENTATION. Seller and Buyer shall
each deposit into escrow such other instruments and documents as are reasonably
required by Escrow Agent or otherwise to close the escrow and consummate the
purchase and sale of the Property in accordance with this Agreement.
6.4 PRORATIONS. Rents and license fees actually collected, whether such
collection occurs prior to, on or after closing (any delinquent rents or license
fees collected after closing shall be applied in the inverse order of
delinquency), real property taxes, installments of assessments due for the year
of closing, water, sewer and utility charges, amounts payable under the
Contracts, if any, that Buyer determines will be continued after closing, annual
permit and/or inspection fees (calculated on the basis of the period covered),
insurance premiums, as to those POLICIES of Seller, if any, that Buyer
determines will be continued after closing, and other expenses normal to the
operation and maintenance of the Property shall be prorated on the basis of a
360-day year as of the Closing Date. Such prorations shall take into account any
sums prepaid or to be paid by tenants as reimbursement for expenses. If any
prorations cannot be calculated accurately on the Closing Date or if any rents
or license fees have not been received as of the Closing Date, then the same
shall be calculated as soon thereafter as possible, and if either party owes the
other party a sum of money based on such prorations, such party shall promptly
pay such sum to the other party, together with interest thereon at the rate of
12% per annum from the Closing Date to the date of payment if payment is not
made within 10 days after delivery of a bill therefor. Notwithstanding any other
provision of this Agreement to the contrary, if Buyer becomes liable after
closing for payment of any real property taxes or assessments assessed against
the Property for any period of time prior to the Closing Date, Seller shall pay
to Buyer, upon demand, an amount equal to such real property tax or assessment.
6.5 CLOSING COSTS. Seller shall pay a portion of the premium for the Title
Policy that is equal to the cost of providing standard coverage and the cost of
any standard endorsements to the Title Policy requested by Buyer. Buyer shall
pay the balance of the premium for the Title Policy and the cost of any special
endorsements to the Title Policy required by Buyer. Seller shall pay any State
of Washington real estate excise taxes applicable to the sale. Seller shall pay
all leasing commissions and tenant improvement costs accrued in connection with
any lease executed on or before closing. Buyer shall be entitled to a credit
against the Purchase Price for the total sum of all security deposits paid to
Seller by tenants under the Leases unless such deposits are delivered to Buyer
at closing. Buyer shall pay the cost of recording the Deed. Buyer and Seller
shall each pay one-half of Escrow Agent's fee.
7. REPRESENTATIONS AND WARRANTIES
7.1 SELLER'S REPRESENTATION AND WARRANTIES. Seller represents and warrants
to Buyer as follows:
(a) (i) To the best of Seller's knowledge, without inquiry, there are
no material physical, structural, design or mechanical defects of the Property,
including, without limitation, the plumbing, heating, air conditioning and
electrical systems, and all such items are in good operating condition and
repair; and (ii) to the best of Seller's knowledge, all such items are in
compliance with all applicable governmental laws and regulations;
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(b) To the best of Seller's knowledge, the use and operation of the
Property are in full compliance with applicable zoning, comprehensive plan, land
use, subdivision, environmental, building, construction and other local, state
and federal laws and regulations; Seller makes this representation and warranty
without regard to exceptions or exemptions to such laws and regulations that are
applicable to Seller because of its status as a limited purpose municipal
corporation;
(c) All Due Diligence Materials and other instruments and documents
delivered to Buyer pursuant to this Agreement are complete and accurate
originals or copies and are, to the best of Seller's knowledge, in full force
and effect, without default by any party;
(d) There are no condemnation, environmental, zoning or other land-use
regulation proceedings instituted or, to the best of Seller's knowledge, planned
to be instituted, that would materially and detrimentally affect the use and
operation of the Property as Buyer's corporate and research and development
headquarters or materially affect the value of the Property, nor has Seller
received notice of any special assessment proceedings affecting the Property;
(e) To the best of Seller's knowledge, all water, sewer, gas,
electric, telephone and drainage facilities and all other utilities required by
law or by the normal use and operation of the Property, as presently used, are
installed to the property lines of the Property, are connected pursuant to valid
permits and are adequate to service the Property and to permit full compliance
with all requirements of law and normal use of the Property, as presently used;
(f) Seller has obtained all licenses, permits and easements and
rights-of-way, including proof of dedication, required from all governmental
authorities having jurisdiction over the Property or from private parties for
the normal use and operation of the Property, as presently used, and to ensure
vehicular and pedestrian ingress to and egress from the Property, as presently
used;
(g) There is no litigation pending or, to the best of Seller's
knowledge, threatened against Seller or any basis therefor that arises out of
the ownership of the Property or that might detrimentally affect the use or
operation of the Property as Buyer's corporate and research and development
headquarters or the ability of Seller to perform its obligations under this
Agreement, or that might materially affect the value of the Property;
(h) Seller is a Washington special purpose municipal corporation duly
organized and validly existing under the laws of the State of Washington; this
Agreement is, and all documents executed by Seller that are to be delivered to
Buyer at closing will be, (i) duly authorized, executed, and delivered by
Seller, (ii) legal, valid and binding obligations of Seller, (iii) sufficient to
convey title (if they purport to do so) and (iv) in compliance with all
provisions of all agreements and judicial orders to which Seller is a party or
to which Seller or all or any portion of the Property is subject;
(i) There is no fact that would prevent Buyer from using and operating
the Property after closing in the normal manner in which the Property is
presently being used and operated;
(j) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Code;
(k) To the best of Seller's knowledge, there has been no generation,
storage, transportation, release, deposit, spill, use, placement or disposal on,
in or under the Property or any properties adjacent thereto of any Hazardous
Substances (except for that caused by Glacier Park and/or BN and/or any of their
affiliates as shall be disclosed in the Due Diligence Materials), and there is
no proceeding or inquiry by any governmental body with respect thereto. To the
best of Seller's knowledge, none of the Improvements contain any hazardous
building materials or toxic substances, including, without limitation, asbestos
or polychlorinated biphenols. A "Hazardous Substance" is any hazardous or toxic
substance, material, or waste, including, but not limited to, (i) those
substances, materials, and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 C.F.R. 172.101) or by the United
States Environmental Protection Agency as a hazardous substance (40 C.F.R. Part
302 and amendments thereto), (ii) petroleum products and their derivatives, and
(iii) such other substances, materials and wastes as become regulated or subject
to cleanup under any local, state or federal laws or regulations; and
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(1) No person or entity has any right of first refusal or option to
acquire any interest in the Property or any part thereof, and Seller has not
sold or contracted to sell the Property or any portion thereof or interest
therein other than as set forth herein.
7.2 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants
to Seller as follows: Buyer is a Washington corporation duly organized and
validly existing under the laws of the State of Washington and is in good
standing under the laws of the State of Washington; this Agreement is, and all
documents executed by Buyer that are to be delivered to Seller at closing will
be, (a) duly authorized, executed, and delivered by Buyer, (b) legal, valid, and
binding obligations of Buyer and (c) in compliance with all provisions of all
agreements and judicial orders to which Buyer is a party or to which it is
subject.
8. INDEMNIFICATION.
8.1 GENERALLY. Each party hereby agrees to indemnify, defend and hold
harmless the other party from and against any and all claims, demands,
liabilities, costs, expenses, penalties, damages and losses (including, without
limitation, reasonable attorneys' fees) resulting from any material
misrepresentation, material breach of warranty or material breach of covenant
made by such party under this Agreement or under any document given or delivered
to the other pursuant to or in connection with this Agreement.
8.2 BY BUYER. Buyer hereby agrees to indemnify, defend and hold harmless
Seller from and against any and all claims, demands, liabilities, costs,
expenses, penalties, damages and losses (including, without limitation,
reasonable attorneys' fees) arising out of Buyer's physical inspection or
environmental cleanup of the Property prior to closing.
8.3 PROCEDURE. If either party receives notice of a claim or demand against
which it is entitled to indemnification pursuant to this Section 8, such party
shall immediately give notice thereof to the other party. The party obligated to
indemnify shall immediately take such measures as may be reasonably required to
properly and effectively defend such claim, and may defend the same with counsel
of its own choosing approved by the other party (which approval shall not be
unreasonably withheld or delayed). If the party obligated to indemnify fails to
defend such claim properly and effectively, then the party entitled to
indemnification may defend such claim with counsel of its own choosing at the
expense of the party obligated to indemnify.
8.4 SURVIVAL. The indemnification provisions of this Section 8 shall
survive beyond the delivery of the Deed and transfer of title, or, if title is
not transferred pursuant to this Agreement, beyond any termination of this
Agreement.
9. LOSS BY CASUALTY; CONDEMNATION. If, prior to closing, the Property, or any
part thereof, is destroyed or damaged by a casualty, or if condemnation
proceedings are commenced against the Property, Buyer shall have the right, by
giving written notice of such decision to Seller within 30 days after receiving
written notice of such destruction, damage or condemnation proceedings, to
terminate this Agreement. If Buyer so terminates this Agreement, the escrow
shall be terminated, the Deposits shall immediately be returned to Buyer, all
documents and other funds shall be returned to the party who deposited them,
and, neither party shall have any further rights or obligations hereunder,
except as otherwise provided in this Agreement, and except that Seller shall pay
any costs of terminating the escrow. If, however, only the Improvements are
destroyed or damaged by a casualty, Buyer shall not have the right to terminate
this Agreement, and shall accept the Property in its then-condition. If Buyer
elects or is required to accept the Property in its then-condition, all proceeds
of insurance or condemnation awards payable to Seller by reason of such
destruction, damage or condemnation, up to the amount of the Purchase Price,
shall be paid or assigned to Buyer; in addition, Buyer shall be entitled to
receive a credit at closing for the amount of any deductible under any
applicable insurance policies of Seller, unless such deductible is paid by
Seller.
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10. POSSESSION. Seller shall deliver possession of the Property to Buyer on the
Closing Date, subject to rights of tenants in possession. However, from and
after the date this Agreement is executed by both parties and through the
Closing Date, Seller shall afford Buyer and Buyer's authorized agents and
representatives reasonable prior access to the Property in order to (a) conduct
the Property Inspection, (b) satisfy Buyer that all of Seller's representations
and warranties under this Agreement are true and that all of Buyer's
Contingencies and Seller's covenants under this Agreement have occurred in
accordance with this Agreement and (c) conduct an environmental cleanup of the
Property if Buyer is not satisfied with the environmental condition of the
Property. Buyer shall indemnify, defend and hold Seller harmless from and
against any and all loss or liability arising from the entry by Buyer, its
agents and representatives on the Property prior to the Closing Date, except to
the extent caused by the gross negligence of Seller or Seller's agents,
employees, tenants or contractors.
11. MAINTENANCE OF THE PROPERTY. From the date this Agreement is executed and
until closing, Seller shall (a) maintain the Property in its present condition
and repair, reasonable wear and tear excepted, except as otherwise provided in
this Agreement, (b) perform all work required to be done by the landlord under
the Leases, and (c) otherwise operate the Property in the same manner as before
the making of this Agreement.
12. BUYER'S CONSENT TO NEW CONTRACTS AFFECTING THE PROPERTY
12.1 GENERALLY. From the date of this Agreement and until closing or any
termination of this Agreement, Seller shall not enter into any lease, lease
amendment, contract, contract amendment, agreement or agreement amendment
relating to the Property or waive any rights of Seller under any of the
foregoing or permit any tenant of the Property to enter into any sublease,
assignment of lease, contract or agreement relating to the Property without, in
each case, obtaining Buyer's prior written consent. Buyer shall not unreasonably
withhold or delay its consent to any of the foregoing.
12.2 SELLER'S RESERVED RIGHTS. Notwithstanding the provisions of Section
12.1, Seller reserves the right to execute, deliver and record leases of all or
portions of the Property provided that (a) the term of each such lease commences
prior to the Closing Date; (b) each such lease grants Seller and its successors
the right to terminate such lease without penalty as of the Closing Date, (c)
the execution, delivery and performance of each such lease can be accomplished
without breaching any of Seller's representations, warranties and covenants
hereunder; and (d) Seller obtains Buyer's prior written consent to each such
lease. Buyer shall not unreasonably withhold or delay its consent to any such
lease.
13. EVENTS OF DEFAULT
13.1 BY SELLER. If there is an event of default under this Agreement by
Seller (including a material breach of any representation, warranty or covenant
set forth herein), and if there is then no event of default under this Agreement
by Buyer, Buyer shall be entitled, in addition to all other remedies available
at law or in equity, (a) to seek specific performance of Seller's obligations
hereunder or (b) to terminate this Agreement pursuant to Section 4.4 by written
notice to Seller and Escrow Agent.
13.2 BY BUYER. If Buyer fails, without any default by Seller or failure of
any of Buyer's Contingencies, and without legal excuse, to complete the purchase
of the Property, Seller's sole and exclusive remedy shall be the termination of
this Agreement and the retention of the Initial Deposit and Additional Deposit
(if previously earned), and in such event Buyer waives and releases any claim
that Seller's retention of the Initial Deposit and Additional Deposit (if
previously earned) is an unenforceable penalty or forfeiture, or that Seller is
not entitled to retain the Initial Deposit and Additional Deposit (if previously
earned).
14. NOTICES. Any notice under this Agreement shall be in writing, state the
section of this Agreement to which it relates and be personally delivered,
delivered by recognized overnight courier service or given by mail or via
facsimile. Any notice given by mail shall be sent, postage prepaid, by certified
or registered mail, return receipt requested. Any notice given by facsimile
shall be verified by telephone. All notices shall be addressed to the parties at
the following addresses or at such other addresses as the parties may from time
to time direct in writing:
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Seller The Port of Seattle
Pier 66
P.O. Box 1209
Seattle, Washington 98111
Attention: Al Lowe
Facsimile No.: (206) 728-3280
Telephone No.: (206) 728-3071
With a copy to: Alston, Courtnage, MacAulay & Proctor
1000 Second Avenue, Suite 3900
Seattle, Washington 98104-1045
Attention: Constance L. Proctor, Esq.
Facsimile No.: (206) 623-1752
Telephone No.: (206) 623-7600
Buyer: Immunex Corporation
51 University Street
Seattle, Washington 98101
Attention: Susan Erb
Facsimile No.: (206) 587-0606
Telephone No.: (206) 587-0430
Any notice shall be deemed to have been given, if personally
delivered, when delivered, and if delivered by courier service, one business day
after deposit with such courier service, and if mailed, two business days after
deposit at any post office in the United States of America, and if delivered via
facsimile, the same day as verified by telephone.
15. BROKERS AND FINDERS. Neither party has had any contact or dealings regarding
the Property, or any communication in connection with the subject matter of this
transaction, through any licensed real estate broker or other person who can
claim a right to a commission or finder's fee as a procuring cause of the
purchase and sale contemplated hereby, except for David Alexander Company, which
represents Buyer and the commission of which shall be 4% of the Purchase Price
and payable if and when closing occurs. Each of the parties shall pay one-half
of such commission at closing. If any other broker or finder perfects a claim
for a commission or finder's fee based upon any such contact, dealings or
communication, the party through whom the broker or finder makes the claim shall
be responsible for such commission or fee and all costs and expenses (including
reasonable attorneys' fees) incurred by the other party in defending such claim.
The provisions of this Section 15 shall survive the delivery of the Deed and
transfer of title.
16. RIGHT OF FIRST OPPORTUNITY. If, after purchasing the Property, Buyer decides
not to develop the Property and to sell it in its then-condition, Buyer shall
give Seller written notice thereof ("Buyer's Notice"), and Seller shall have the
right of first opportunity to purchase the Property at its then-fair market
value ("Fair Market Value"). If Seller desires to exercise its right of first
opportunity to purchase the Property, Seller shall give Buyer written notice
thereof within 5 days after receiving Buyer's Notice, and the parties shall
thereafter seek to agree upon the Fair Market Value. If the parties are unable
to agree upon the Fair Market Value within 15 days after the date of Buyer's
Notice, each party shall, within 5 days thereafter, at its cost and by giving
written notice to the other party, appoint an MAI real estate appraiser with at
least 10 years' full-time commercial appraisal experience in Seattle,
Washington, to determine the Fair Market Value. The 2 appraisers shall seek to
agree upon the Fair Market Value. If they are unable to agree upon the Fair
Market Value within 15 days after the second appraiser was appointed, they shall
select a third appraiser meeting the qualifications stated in this Section
within 5 days after the expiration of such 15-day period. If they are unable to
timely agree on the third appraiser, either of the parties, by giving 5 days'
written notice to the other, may apply to the presiding judge of the Superior
Court of King County, Washington for the selection of the third appraiser. Each
of the parties shall bear one-half of the cost of appointing the third appraiser
and of paying the third appraiser's fees. The third appraiser, however selected,
shall be a person who has not previously acted in any capacity for either party.
Within 15 days after the selection of the third appraiser, a majority of the
appraisers shall determine the Fair Market Value. If a majority of the
appraisers are unable to timely agree upon the Fair Market Value, the 3
appraisals shall be added together, the total shall be divided by 3, and the
resulting quotient shall be the Fair Market Value. If, however, the low
appraisal or the high appraisal is more than 10% lower or higher than the middle
appraisal, such appraisal shall be disregarded. The remaining 2 appraisals shall
then be added together, the total shall be divided by 2, and the resulting
quotient shall be the Fair Market Value. If both the low appraisal and the high
appraisal are disregarded, the middle appraisal shall be the Fair Market Value.
After the Fair Market Value has been set, the appraisers shall immediately
notify the
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parties thereof in writing, and such Fair Market Value shall be binding upon the
parties. Seller and Buyer shall have 30 days following the delivery of the
appraisers' notice to negotiate on an exclusive basis and in good faith to enter
into a purchase and sale agreement for the Property. If Seller and Buyer execute
a binding purchase and sale agreement for the Property within such 30-day
period, they shall thereafter perform their respective obligations thereunder.
If Seller and Buyer fail to execute a binding purchase and sale agreement for
the Property within such 30-day period, Seller's rights under this Section 16
shall expire, and Buyer shall have the right to market and sell the Property to
third parties.
17. SUCCESSORS AND ASSIGNS. Buyer shall not assign this Agreement without
Seller's prior written consent. Seller acknowledges that Buyer is considering
reincorporating in the State of Washington. If such reincorporation occurs, it
shall not be considered an assignment for purposes of this Agreement.
Notwithstanding the foregoing, Buyer may, without obtaining Seller's prior
written consent, assign its rights hereunder to Buyer's parent corporation or
any of its subsidiaries or affiliates, provided that (a) the assignee agrees in
writing to assume all of Buyer's obligations hereunder with respect to the
Property, and (b) Buyer shall in no respect be released from its obligations
hereunder. Subject to the foregoing, this Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns.
18. AMENDMENTS. This Agreement may be amended or modified only by a written
instrument executed by Seller and Buyer.
19. CONTINUATION AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties by the respective parties contained herein or
made in writing pursuant to this Agreement are intended to and shall remain true
and correct as of the time of closing, shall be deemed to be material and shall
survive the execution and delivery of this Agreement and the delivery of the
Deed and transfer of title. All statements contained in any certificate or other
instrument delivered at any time by or on behalf of Seller in conjunction with
the transaction contemplated hereby shall constitute representations and
warranties hereunder. The obligations of the parties pursuant to Sections 6.4,
8, 15 and 16 shall also survive the execution and delivery of this Agreement and
the delivery of the Deed and transfer of title.
20. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
21. ENTIRE AGREEMENT. This Agreement and the exhibits hereto constitute the
entire agreement between the parties with respect to the purchase and sale of
the Property and supersedes all prior agreements and understandings between the
parties hereto relating to the subject matter hereof.
22. ENFORCEMENT. If either party hereto fails to perform any of its obligations
under this Agreement or if a dispute arises concerning the meaning or
interpretation of any provision of this Agreement, the defaulting party or the
party not prevailing in such dispute, as the case may be, shall pay any and all
costs and expenses incurred by the other party in enforcing or establishing its
rights hereunder, including, without limitation, court costs and reasonable
attorneys' fees.
23. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
24. EXCLUSIVITY. Seller shall not actively market the Property to prospective
purchasers or actively negotiate for the placement of mortgage financing on the
Property until after the expiration of the Due Diligence Period, and then only
if Buyer elects not to purchase the Property.
25. COUNTERPARTS. This Agreement may be signed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
26. WAIVER. Neither Seller's nor Buyer's waiver of the breach of any covenant
under this Agreement shall be construed as a waiver of the breach of any other
covenants or as a waiver of a subsequent breach of the same covenant.
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27. CONFIDENTIAL INFORMATION. All information (including the information
contained in the Due Diligence Materials) disclosed by Seller to Buyer shall be
considered confidential information and shall not be disclosed to any third
party without Seller's written consent, except for (a) information that is in
the public domain or comes into the public domain through no fault of Buyer; (b)
information learned by Buyer from a third party entitled to disclose such
information; (c) information developed by Buyer independently of knowledge or
information obtained by Buyer from Seller; (d) information already known to
Buyer before receipt from Seller, as shown by Buyer's prior written records; and
(e) information that Buyer is required to disclose under applicable law. All
information disclosed by Buyer to Seller shall be considered confidential
information and shall not be disclosed to any third party without Buyer's
written consent, except for (a) information that is in the public domain or
comes into the public domain through no fault of Seller; (b) information learned
by Seller from a third party entitled to disclose such information; (c)
information developed by Seller independently of knowledge or information
obtained by Seller from Buyer; (d) information already known to Seller before
receipt from Buyer, as shown by Seller's prior written records; and (e)
information that Seller is required to disclose under applicable law.
28. GOOD FAITH. Buyer and Seller shall perform their respective obligations
under this Agreement in good faith and with diligence.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER: THE PORT OF SEATTLE, a limited purpose municipal
corporation
By /s/ M.R. Dinsmore
Name M.R. Dinsmore
Title Executive Director
BUYER: IMMUNEX CORPORATION, a Washington corporation
By /s/ Michael L. Kranda
Name Michael L. Kranda
Title President and COO
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Exhibit 10.21
SUBLEASE AGREEMENT
ELLIOTT PARK BUILDING
(Space on Floors 1 and 2)
BETWEEN
PATHOGENESIS CORPORATION
"SUBLESSOR"
AND
IMMUNEX CORPORATION
(`TENANT'7
DECEMBER 1, 1996
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TABLE OF CONTENTS
PAGE
1. LEASE DATA, DEFINITIONS AND EXHIBITSI
1.1 Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Subleased Premises . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Tenant's Building Percentage . . . . . . . . . . . . . . . . . . l
1.4 Tenant's Special Costs Percentage . . . . . . . . . . . . . . . 2
1.5 Commencement Date. . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7.1 Base Rent. . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7.2 Additional Rent. . . . . . . . . . . . . . . . . . . . . . 2
1.7.3 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.9 Parking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10 Notice Addresses . . . . . . . . . . . . . . . . . . . . . . . . 3
1.11 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. LEASE OF SUBLEASED PREMISES . . . . . . . . . . . . . . . . . . . . . 3
3. COMMENCEMENT AND EXPIRATION . . . . . . . . . . . . . . . . . . . . . 4
3.1 Preparation of Subleased Premises . . . . . . . . . . . . . . . 4
3.2 Commencement Date; Access by Tenant . . . . . . . . . . . . . . 4
3.3 Inspection and Acceptance of Subleased Premises. . . . . . . . . 4
3.4 Expiration Date. . . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 Environmental Clean-Up and Decommissioning; Indemnifications . . 4
3.5.1 Clean up and Decommissioning . . . . . . . . . . . . . . . 4
3.5.2 Indemnifications . . . . . . . . . . . . . . . . . . . . . 5
4. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Monthly Base Rent and Additional Rent. . . . . . . . . . . . . . 5
4.2 Late Charges . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.3 Interest on Overdue Payments . . . . . . . . . . . . . . . . . . 5
4.4 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.5 Personal Property Taxes. . . . . . . . . . . . . . . . . . . . . 6
5. CALCULATION AND PAYMENT OF ADDITIONAL RENT . . . . . . . . . . . . . 6
5.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1.1 Building Operating Costs . . . . . . . . . . . . . . . . . 6
5.1.2 Building Operating Costs Allocable to the
Subleased Premises . . . . . . . . . . . . . . . . . . . . 7
5.1.2.1 Allocating Service and Utility Expenses . . . . . 7
5.1.2.2 Allocating Real Property Taxes . . . . . . . . . . 7
5.1.2.3 No Base Year or Expense Stop . . . . . . . . . . . 7
5.1.3 Special Costs. . . . . . . . . . . . . . . . . . . . . . . 7
5.1.4 Special Costs Allocable to the Subleased Premises. . . . . 8
5.1.4.1 Special Costs General Allocable Based on
Special Costs. . . . . . . . . . . . . . . . . . . 8
5.1.4.2 Allocating Certain Special Costs . . . . . . . . . 8
5.2 Additional Rent. . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2.1 Monthly Additional Rent Based on Estimates . . . . . . . . 8
5.2.2 Annual Reconciliation of Additional Rent . . . . . . . . . 8
5.3 Determinations . . . . . . . . . . . . . . . . . . . . . . . . . 9
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6. SERVICES, UTILITIES, CHEMICALS IN FIRE CONTROL ZONE . . . . . . . . . 9
6.1 Standard Building Services and Condition . . . . . . . . . . . . 9
6.2 Interruption of Services. . . . . . . . . . . . . . . . . . . . . 9
6.3 Asbestos in Trade Equipment . . . . . . . . . . . . . . . . . . . 9
6.4 Hazardous Materials in~Fire Control Zones . . . . . . . . . . . . 10
7. IMPROVEMENTS AND ADDITIONS TO LEASED PREMISES . . . . . . . . . . . . 10
8. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . 10
9. AGENCY REPRESENTATION . . . . . . . . . . . . . . . . . . . . . . . . 11
10. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 11
10.1 Indemnification of Sublessor . . . . . . . . . . . . . . . . . . 11
10.2 Indemnification of Tenant. . . . . . . . . . . . . . . . . . . . 11
11. SUBLESSOR OBLIGATIONS RELATING TO MASTER LEASE. . . . . . . . . . . . 11
11.1 Payment of Rent. . . . . . . . . . . . . . . . . . . . . . . . . 11
11.2 Breach of Master Lease . . . . . . . . . . . . . . . . . . . . . ll
11.3 Building Owner's Default . . . . . . . . . . . . . . . . . . . . 12
11.4 Building Owner's Consent . . . . . . . . . . . . . . . . . . . . 12
12. ADOPTION AND INCORPORATION OF MASTER LEASE. . . . . . . . . . . . . . 12
12.1 References to Lease. . . . . . . . . . . . . . . . . . . . . . . 12
12.2 References to Premises . . . . . . . . . . . . . . . . . . . . . 12
12.3 References to Landlord . . . . . . . . . . . . . . . . . . . . . 12
12.4 References to Tenant . . . . . . . . . . . . . . . . . . . . . . 13
12.5 Provisions of Master Lease Requiring Special Interpretation . . 13
12.5.1 Provisions Not Applicable to Sublease . . . . . . . . . . 13
12.5.2 Provisions Requiring Modification or Clarification . . . 13
12.6 Inconsistencies Between Master Lease Provisions and Sublease . . 14
EXHIBITS
EXHIBIT A Legal Description
EXHIBIT B Floor Plan of Subleased Premises
EXHIBIT C Floor Plan of Special Area
EXHIBIT D Sublessor's Work and Tenant's Work
EXHIBIT E Master Lease Provisions
EXHIBIT F (Intentionally deleted)
EXHIBIT G List of Building Owner's Personal Property in Subleased
Premises
EXHIBIT H Right of First Opportunity
EXHIBIT I 1996 Building Operating Costs Estimate
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SUBLEASE AGREEMENT
ELLIOTT PARK BUILDING
(Space on 1st and 2nd Floors)
This Sublease Agreement ("Sublease") is made as of this December I, 1996,
by and between PATHOGENESIS CORPORATION, a Delaware corporation ("Sublessor")
and IMMUNEX CORPORATION, a Washington corporation ("Tenant").
RECITALS
A. Sublessor is a tenant in certain laboratory and office space on the
first and second floors of the Elliott Park Building pursuant to that certain
Lease Agreement between Sublessor, as tenant, and
David A. Sabey and Sandra L. Sabey (collectively, "Building Owner"), as
landlord, dated June 8, 1992, as amended by a First Amendment dated September
24, 1992, a Second Amendment dated November 16, 1992, and a Third Amendment
dated August 1, 1996 (as amended, the "Master Lease," portions of which are
attached hereto as EXHIBIT E).
B. Sublessor and Tenant desire to enter into this Sublease to set forth the
terms under which tenant shall sublease from Tenant certain portions of
Sublessor's space in the Building.
AGREEMENTS
Now, therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration, Sublessor and Tenant agree as
follows:
1. LEASE DATA, DEFINITIONS AND EXHIBITS. The following capitalized terms as
used herein shall have the meanings provided in this Section 1, unless otherwise
specifically modified by provisions of this Sublease:
1.1 BUILDING: "Building" shall mean the structure situated on a
portion of the real property more particularly described in EXHIBIT A hereof,
with a postal address of 201 Elliott Avenue W., Seattle, Washington 98119.
1.2 SUBLEASED PREMISES. The "Subleased Premises" shall consist of that
portion of the Building located on the 1st and 2nd floors of the Building and
designated as Immunex space, as shown on the floor plan attached hereto as
EXHIBIT B, subject, however, to all deeds of trust, mortgages, or other
encumbrances or restrictions that currently exist against the Building or the
leasehold interest in the Building held by the Sublessor under the Master Lease.
1.3 TENANT'S BUILDING PERCENTAGE. "Tenant's Building Percentage" shall
mean 9.88%, calculated by dividing the area of the Subleased Premises
(approximately 13,257 net rentable square feet) by the total net rentable area
of the Building (134,118 net rentable square feet). The net rentable area of the
Subleased Premises has been calculated in accordance with BOMA to the
satisfaction of Sublessor and Tenant and is final and binding on the parties. If
the net rentable area of the Building is altered or if the net rentable area the
Subleased Premises is modified pursuant to an amendment to this
Sublease, Sublessor shall increase or decrease Tenant's Building Percentage, as
appropriate, to properly reflect such event.
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1.4 TENANT'S SPECIAL COSTS PERCENTAGE. "Special Area" means the
special area of the Building that is specially serviced by the equipment and
systems covered by the "Special Costs," as more fully described in Section 5.1.3
below. A floor plan showing the Special Area is attached hereto as Exhibit C.
The Special Area includes Sublessor's space (a portion of which is subleased to
Tenant hereunder) and a portion of the space occupied by Cell Therapeutics, Inc.
("CTI"). "Tenant's Special Costs Percentage" shall mean 49.99%, calculated by
dividing the area of the Subleased Premises (13,257 ~A .+ ~ I net rentable
square feet) by the total area (2~519 net rentable square feet) of the Special
Area occupied by Sublessor and Tenant. The designation square footage of the
portion of the Special Area ' occupied by Sublessor and Tenant and of the
Tenant's Special Costs Percentage herein is final and binding on the parties.
However, if the portion of such Special Area leased to Sublessor under the
Master Lease or subleased to Tenant is modified pursuant to an amendment to the
Master Lease or this Sublease, or if the total area of the Special Area changes,
or if any of the utilities and services comprising the Special Costs are altered
or reconfigured to serve an area of the Building other than the Special Area
described herein, Sublessor shall increase or decrease Tenant's Special Costs
Percentage, as appropriate, to properly reflect such event.
1.5 COMMENCEMENT DATE. The "Commencement Date" shall be December 1,
1996, provided that Sublessor has substantially completed the work that
Sublessor must perform as "Commencement Conditions" of the Sublease (described
in EXHIBIT D) and Tenant has been given an opportunity to inspect the Subleased
Premises and to create a punchlist of any items needing completion or repair.
Sublessor shall complete all proper punchlist items within 30 days after
receiving Tenant's punchlist.
1.6 EXPIRATION DATE. The "Expiration Date" shall mean December 31,
2000. Accordingly, the Sublease Term shall be 4 years and 1 month, unless the
term of this Sublease is extended by the parties pursuant to the Right of First
Opportunity described in EXHIBIT H.
1.7 Rent.
1.7.1 BASE RENT. The Base Rent for the Subleased Premises shall
be $397,710 per year (calculated to the parties' satisfaction at $30.00 per
square foot per year). Tenant shall pay Base Rent in 12 equal monthly
installments of $33,142.50 each on or before the first day of each month during
the Sublease Term.
1.7.2 ADDITIONAL RENT. As more fully described in Section 5
below, Tenant shall also pay Additional Rent on or before the first day of each
month and in connection with any annual reconciliation. Additional Rent shall
include: (i) "Building Operating Costs Allocable to the Subleased Premises", and
(ii) "Special Costs Allocable to the Subleased Premises," as defined in Sections
5.1.2, and 5.1.4, respectively. Upon commencement of the Sublease, Additional
Rent shall initially be payable in monthly installments of $11,154.61, based on
the calculations described in Section 5 and the estimates of Building Operating
Costs and Special Costs contained in EXHIBIT I.
1.7.3 RENT. Base Rent and Additional Rent and all other sums due
hereunder are collectively herein sometimes referred to as "Rent."
1.8 DEPOSITS. Within two business days after mutual execution of this
Sublease, Tenant shall deposit with Sublessor pre-paid Rent of $88,594.22, (the
estimated total amount of two month's Base Rent and Additional Rent). Such
pre-paid Rent shall be applied to the first two month's Rent.
1.9 PARKING. TENANT SHALL HAVE THE right to lease up to 13
non-assigned parking stalls in the parking garage under the Seattle P-I Building
from Sublessor at the monthly rental rate that Sublessor is obligated to pay for
such stalls under the Master Lease. Such rate is currently $100 per month but
may be increased according to market rates pursuant to the Master Lease. On or
before February 1, 1997, Tenant shall notify Sublessor in writing whether or not
it desires to lease all 13 such spaces, and if not, how many spaces its desires
to lease. Sublessor shall transfer the correct number of spaces to Tenant within
3 business days after Tenant's designation of the number of spaces it desires,
and Tenant shall have responsibility to pay rent for such spaces commencing on
its use of such spaces but in any event not later than February 1, 1997. Tenant
shall continue to pay rent for such spaces for the entire remaining term of the
Sublease and any extension hereof, unless otherwise mutually agreed in writing
by Sublessor and Tenant.
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1.10 NOTICE ADDRESSES.
SUBLESSOR: Pathogenesis Corporation
Attn: Shashi Karan
201 Elliott Avenue West, Suite 150
Seattle, WA 98119
Tel: 206-467-8100
Fax: 206-270-3342
TENANT: Immunex Corporation
Attn: Susan Erb, Vice President
of Operations
51 University St.
Seattle, WA 98101
Tel: 206-587-0430
Fax: 206-587-0606
1.11 EXHIBITS. The following Exhibits are made a part of this
Sublease:
EXHIBIT A Legal Description
EXHIBIT B Floor Plan of Subleased Premises
EXHIBIT C Floor Plan of Special Area
EXHIBIT D Description of Sublessor's Work and
Tenant's Work
EXHIBIT E - Master Lease Provisions
EXHIBIT F [intentionally omitted]
EXHIBIT G List of Building Owner's Personal
Property in Subleased Premises
EXHIBIT H Right of First Opportunity
EXHIBIT I 1996 Estimated Building Operating Costs
and Special Costs
2. LEASE OF SUBLEASED PREMISES. Sublessor hereby leases to Tenant, and
Tenant hereby leases from Sublessor, upon the terms and conditions herein set
forth, the Subleased Premises described in Section 1.2 hereof as shown on
EXHIBIT B attached hereto and incorporated herein, together with a non-exclusive
and undivided interest in all of Sublessor's rights of ingress and egress over
common areas in the Building located on the land ("Land") legally described in
EXHIBIT[T A. The Subleased Premises, Building and Land are sometimes
collectively referred to herein as the "Property."
3. COMMENCEMENT AND EXPIRATION.
3.1 PREPARATION OF SUBLEASED PREMISES. If not already completed upon
execution of this Sublease, Sublessor shall proceed with reasonable diligence to
complete the Sublessor Work described in EXHIBIT D as a condition of
commencement of the Lease.
3.2 COMMENCEMENT DATE; ACCESS BY TENANT. The Commencement Date shall
be the date specified in Section 1.5. Prior to the Commencement Date, Tenant or
its authorized agents may enter the Subleased Premises upon reasonable notice to
Sublessor prior to, during, or after normal business hours for the purpose of
space planning or preparation, provided, however, that Tenant shall not
interfere with Sublessor's preparation of the Subleased Premises for occupancy
by Tenant.
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3.3 INSPECTION AND ACCEPTANCE OF SUBLEASED PREMISES. Within 5
business days after the date this Lease is executed by all parties, Tenant shall
make such inspection of the Subleased Premises as Tenant deems appropriate and
shall notify Sublessor in writing if Tenant believes that Sublessor has not
completed any of the Commencement Conditions listed in EXHIBIT D. Tenant shall
be deemed to have accepted the Subleased Premises in an "as-is" condition,
except for any deficiencies included in Tenant's notice, provided, however that
unless such deficiencies constitute Commencement Conditions or render the
Subleased Premises uninhabitable, the Sublease Term shall have commenced as
provided in Section 1.5 and Rent shall be payable commencing as of such
Commencement Date.
3.4 EXPIRATION DATE. The Sublease shall expire on the date specified
in Section 1.6, unless the term of this Sublease is extended by the parties
pursuant to the Right of First Opportunity described in EXHIBIT H.
3.5 ENVIRONMENTAL CLEAN-UP AND DECOMMISSIONING; INDEMNIFICATIONS.
3.5.1 CLEAN UP AND DECOMMISSIONING. Tenant's business in the
Subleased Premises will involve storage, use, and disposal of biological
material, chemicals, and other hazardous substances. Upon expiration or
termination of this Sublease following a default by Tenant, Tenant shall at its
expense perform a thorough wash and decontamination of the Subleased Premises,
including but not limited to scrubbing of all surfaces, equipment, cabinets,
fixtures, and fume hood external surfaces in the Subleased Premises, in order to
remove all residues of such biological material, chemicals, and hazardous
substances. Upon completing such clean-up, Tenant shall also at its expense
cause an environmental engineering company reasonably satisfactory to Sublessor
and Building Owner to perform an environmental inspection and report of the
Subleased Premises similar to that performed by Biomembrane when it vacated the
Subleased Premises, a copy of which has been provided to Tenant (i.e., similar
in thoroughness, although the parties recognize that Tenant's research and use
will involve different materials and chemicals than those used by Biomembrane,
and therefore, the environmental inspection and report will be geared to
materials used in the Subleased Premises by Tenant). Tenant shall promptly
provide a copy of such report to Sublessor and the Building Owner. Such
inspection shall include testing of surfaces, equipment, cabinets, fixtures, and
fume hood external surfaces in the Subleased Premises for the existence of
various chemicals and substances used in Tenant's business, and such report
shall certify that the Subleased Premises are in an environmental condition that
is ubstantially the same as the condition that existed when Tenant first
occupied the Subleased Premises. Tenant's clean-up shall be completed prior to
expiration of the Sublease Term and such environmental report shall be provided
as soon as possible thereafter, and in any event no later than 10 business days
after such expiration. Such obligations (together with any other obligations of
Tenant remaining unperformed upon expiration and termination of this Sublease)
shall survive such expiration or termination.
3.5.2 INDEMNIFICATIONS Each party (in this Section 3.5.3, the
"indemnifying party") shall be solely responsible for and shall defend,
indemnify and hold harmless the other party and its employees and agents
(collectively in this Section 3.5.3, the "indemnified party") against all
liabilities, obligations, damages, penalties, claims, causes of action, costs,
charges and expenses, including reasonable attorneys' fees, court costs,
administrative costs, and costs of appeals arising out of or in connection with
the deposit, spill, release, emission, or other mishandling of hazardous
substances ("Environmental Liabilities") by the indemnifying party in or about
the Building or other parts oL the Property, but this indemnity shall not extend
to any Environmental Liabilities resulting from the actions or omissions of the
indemnified party or its employees, agents, licensees, invitees, or contractors.
The indemnities given by each party under this section shall survive the
expiration or termination of this Sublease.
4. RENT.
4.1 MONTHLY BASE RENT AND ADDITIONAL RENT. Tenant shall pay Sublessor
without notice or demand the Base Rent stated in Section 1.7.1 hereof and
Additional Rent as provided in Sections 1.7.2 and 5 and any other additional
payments due under this Sublease without deduction or offset in lawful money of
the United States in advance on or before the first day of each month (except as
provided in Section 1.~) at Sublessor's Notice Address set forth in Section 1.10
hereof, or to such other party or at such other place as Sublessor may hereafter
from time to time designate in writing. The Base Rent and Additional Rent for
any partial month at the end of the Sublease Term shall be prorated in
proportion to the number of days in such month.
4.2 LATE CHARGES. If any Base Rent, Additional Rent, or other Rent
due on the first day of a month under this Sublease remains unpaid on the 5th
day of such month, Tenant shall immediately pay to Sublessor a late charge equal
to 1% of such installment, which Tenant agrees represents a reasonable estimate
of Sublessor's cost and expense arising from such delinquency.
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4.3 INTEREST ON OVERDUE PAYMENTS. In addition to the late charge, if
any Base Rent, Additional Rent, annual Additional Rent reconciliation, Parking
Rent, or other sums payable by Tenant to Landlord under this Lease are not paid
upon the due date thereof, such overdue amounts shall bear interest at an annual
rate equal to 1% above the prime rate charged by Bank of America NW, N.A, (doing
business as Seafirst Bank) or its successor, but not in excess of the highest
lawful rate permitted under applicable laws, with the obligation to pay such
interest commencing on the 3 1st day after such payment is due, but the amount
of such interest being calculated from the original due date thereof to the date
of payment.
4.4 NO WAIVER. Acceptance by Landlord of any late charges or interest
on overdue payments under Section 4.2 or 4.3 shall in no event constitute a
waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of its other rights and remedies granted hereunder.
4.5 PERSONAL PROPERTY TAXES. Tenant shall pay, prior to delinquency,
any and all property taxes assessed against the personal property of Tenant
located in the Subleased Premises or the Building and shall promptly, upon
request of Sublessor, provide written proof of such payment.
5. CALCULATION AND PAYMENT OF ADDITIONAL RENT.
5.1 DEFINITIONS.
5.1.1 BUILDING OPERATING COSTS." Building Operating Costs"
shall mean "Real Property Taxes" and "Service and Utility Costs", defined in and
calculated under the Master Lease as follows:
5.1.1.1 "REAL Property Taxes" shall mean taxes on real
property and personal property; charges and assessments (or any installments
thereof due during the calendar year) levied with respect to the Land, the
Building, any improvements, fixtures and equipment, and all other property of
the Building Owner, real or personal, used directly in the operation of the
Property and located in or on the Building and the Property, and any taxes
levied or assessed (or any installment thereof due during the calendar year) in
addition to or in lieu of, in whole or in part, such real property or personal
property taxes, or any other tax upon leasing of the Property and/or Building or
rents collected, but not including any federal or state income, estate, business
and occupation, inheritance or franchise tax; and
5.1.1.2 "Service and Utility Costs" shall mean all other
expenses paid or incurred by the Building Owner for obtaining services and
products for maintaining, operating and repairing the Building and the personal
property used in conjunction therewith, including, without limitation, the costs
of refuse collection, water, sewer and other utilities services, electricity,
gas and other similar energy sources, supplies, janitorial and cleaning
services, window washing, landscape maintenance, services of independent
contractors, compensation (including employment taxes and fringe benefits) of
all persons who perform duties in connection with the operation, maintenance and
repair of the Building, its equipment and the Land upon which it is situated,
insurance premiums, licenses, permits and inspection fees, a management fee in
an amount equal to 5% of the sum of the Additional Rent for collection and
accounting expenses and any other expenses or charge whether or not hereinabove
described, which in accordance with generally accepted accounting principles and
management practices would be considered an expense of maintaining, operating,
or repairing the Building, excluding or deducting, as appropriate:
5.1.1.2.1 Costs of any special services rendered to
individual tenants (including Tenant) for which a special charge is collected
including, without limitation, any specially metered charges;
5.1.1.2.2 Depreciation or amortization of costs required
to be capitalized in accordance with generally accepted accounting practices
(except other Operating Costs shall include amortization of capital improvements
made subsequent to the initial development of the Property which are designed
with a reasonable probability of improving the operating efficiency of the
Property, provided that such amortization expense shall not exceed reasonably
expected savings in operating costs resulting from such capital improvements).
"Estimated Building Operating Costs" shall mean those estimated by the Building
Owner at the beginning of each calendar year, and "Actual Building Operating
Costs" shall mean those actually ncurred by the Building Owner for each calendar
year and reported to Sublessor and Tenant for purposes of any year-end
reconciliation with estimates. Such data shall be used in determining the
Tenant's Additional Rent under this Sublease. The Building Owner's estimate of
1996 Building Operating Costs is included in EXHIBIT I.
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5.1.2 BUILDING OPERATING COSTS ALLOCABLE TO THE SUBLEASED
PREMISES "Building Operating Costs Allocable to the Subleased Premises" shall
mean the portion of Service and Utility Costs and the portion of Real Property
Taxes allocable to the Subleased Premises as follows:
5.1.2.1 ALLOCATING SERVICE AND UTILITY EXPENSES. In
determining the portion of Service and Utility Costs allocable to the Subleased
Premises, the Sublessor shall multiply the Tenant's Building Percentage
described in Section 1.3 by the total Service and Utility Costs estimated or
reported by the Building Owner for the entire Building, except that, to the
extent any such cost varies depending upon occupancy of the areas served and the
variable portion has, in accordance with Section 8(a)(iv)(1) of the Master
Lease, been allocated by the Building Owner in accordance with Sublessor's share
of the weighted average leased area of the Building during the calendar year,
the portion allocated to the Subleased Premises shall be calculated by dividing
the net rentable area of the Subleased Premises by the net rentable area of the
premises leased by Sublessor under the Master Lease
5.1.2.2 ALLOCATING REAL PROPERTY TAXES. In determining
the portion of Service and Utility Costs allocable to the Subleased Premises,
the Sublessor shall multiply the Tenant's Building Percentage described in
Section 1.3 by the total Real Property Taxes estimated or reported by the
Building Owner for the entire Building.
5.1.2.3 NO BASE YEAR OR EXPENSE STOP. Tenant understands
that the determination of Building Operating Costs Allocable to the Subleased
Premises is based on a "totally net" or "triple net" calculation, and is not
limited to any increases over a "base year," nor is it limited by any "expense
stop," cap, or other ceiling.
The initial amount of Estimated Building Operating Costs Allocable to the
Subleased Premises and to be included in Additional Rent on a monthly basis upon
commencement of the Sublease is shown in EXHIBIT I.
5.1.3 SPECIAL COSTS. "Special Costs" means certain additional
costs separately payable by tenants of the Special Area of the Building for
certain additional equipment and services that specially benefit such Special
Area. Such Special Costs include, without limitation, all utilities serving such
Special Area, including but not limited to electricity, natural gas, water, and
sewer (which are metered or billed separately from building common area
utilities), and also include maintenance, operation, and repair of the separate
electricity service, separate air handling and vacuum system, and separate
boiler on the roof over the second floor, all serving the Special Area.
Sublessor represents and Tenant understands that the Building Owner has
delegated to Sublessor the responsibility to collect from all tenants and
subtenants in the Special Area the portions of the Special Costs for which they
are responsible, and to make sure that all Special Costs are timely paid. The
Sublessor's estimate of 1996 Special Costs, broken down by category and
calculated after deducting the portion of such Special Costs payable by CTI, is
included in EXHIBIT I. "Estimated Special Costs" shall mean those estimated by
the Sublessor at the beginning of each calendar year, and "Actual Special Costs"
shall mean those actually incurred for each calendar year and reported to Tenant
for purposes of any year-end reconciliation with estimates. Such data shall be
used in determining the Tenant's Additional Rent under this Sublease.
5.1.4 SPECIAL COSTS ALLOCABLE TO THE SUBLEASED PREMISES
"Special Costs Allocable to the Subleased Premises" shall mean the portion of
Special Costs allocable to the Subleased Premises as follows:
5.1.4.1 SPECIAL COSTS GENERALLY ALLOCABLE BASED ON
SPECIAL COSTS PERCENTAGE. Sublessor shall multiply the Tenant's Special Costs
Percentage described in Section 1.4 by the total amount of Special Costs not
payable by CTI, subject to any adjustments that may become appropriate under
Section 5.1.4.2.
5.1.4.2 ALLOCATING CERTAIN SPECIAL COSTS.
Notwithstanding the foregoing, if any Special Costs benefit the space occupied
by Sublessor or the Subleased Premises in a manner that is substantially
disproportionate to Tenant's Special Costs Percentage (e.g., possible
consumption of water or natural gas in a manner substantially disproportionate
to Tenant's Special Costs Percentage) Sublessor shall require a more accurate
allocation between itself and Tenant based on relative amounts of consumption,
use or benefit. In that event, Sublessor and Tenant shall meet and in good faith
attempt to agree on how such special items shall be allocated based on
consumption or benefit, and if Sublessor and Tenant cannot agree on such
allocation, the dispute shall be submitted to binding arbitration under American
Arbitration Association rules before a neutral arbitrator with expertise
relevant to the subject matter of the dispute.
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5.2 ADDITIONAL RENT. In addition to the Base Rent provided in
Section 1.7.1 of this Sublease, Tenant shall pay to Sublessor as "Additional
Rent" an amount equal to the sum oL (i) Building Operating Costs Allocable to
the Subleased Premises, and (ii) Special Costs Allocable to the Subleased
Premises. Such Additional Rent shall be paid as follows:
5.2.1 MONTHLY ADDITIONAL RENT BASED ON ESTIMATE. Prior to each
calendar year after commencement of the Lease, Sublessor shall furnish Tenant a
written statement of the "Estimated Additional Rent" for such calendar year,
which shall equal the total of Estimated Building Operating Costs Allocable to
the Subleased Premises and the Estimated Special Costs Allocable to the
Subleased Premises for such calendar year. Along with such statement, Sublessor
shall provide Tenant with a copy of the Building Owner's calculation of
Estimated Building Operating Costs and Sublessor's calculation of Estimated
Special Costs for the upcoming calendar year. Tenant shall pay Additional Rent
on the first day of each month in an amount equal to 1/12 of the Estimated
Additional Rent for the calendar year. If at any time or times during such
calendar year (but no more than twice during a calendar year), it appears to
Sublessor that the Actual Additional Rent will vary from the Estimated Actual
Rent by more than 5% on an annual basis, Sublessor may, by written notice to
Tenant, revise its estimate for such calendar year and Additional Rent payments
by Tenant for such calendar year shall be based on such revised estimate.
5.2.2 ANNUAL RECONCILIATION OF ADDITIONAL RENT. Within 90 days
after the close of each calendar year, or as soon thereafter as practicable,
Sublessor shall deliver to Tenant a written statement setting forth the Actual
Building Operating Costs Allocable to the Subleased Premises and the Actual
Special Costs Allocable to the Subleased Premises during the preceding calendar
year or such prorated portion thereof if this Sublease commences or terminates
on a day other than the first or last day of a calendar year (based on a 365-day
calendar year). Along with such statement Sublessor shall provide Tenant with a
copy of the Building Owner's calculation of Actual Building Operating Costs
(itemized by categories) and Sublessor's calculation of Actual Special Costs
(itemized by categories) for the previous calendar year.. If the Additional Rent
payable by Tenant based on such statements of actual expenses for the previous
calendar year exceeds the amount of Additional Rent already paid by Tenant ased
on the estimates of such expenses, Tenant shall pay the amount of such excess to
Sublessor as Additional Rent within 30 days after receipt of such statement by
Tenant. If the Additional Rent payable by Tenant based on such statements of
actual expenses for the previous calendar year is less than the amount of
Additional Rent already paid by Tenant based on the estimates of such expenses,
then the amount of such overpayment by Tenant shall be credited by Sublessor to
the next payment of Base Rent, or, after expiration of this Sublease and payment
of all amounts owing by Tenant, shall be refunded to Tenant.
5.3 DETERMINATIONS. The determination of Building Operating Costs
made by the Building Owner and all determinations and calculations made by
Sublessor hereunder, including but not limited to calculations of Tenant's
Building Percentage, Tenant's Special Costs Percentage, Special Costs, Building
Operating Costs Allocable to the Subleased Premises, and Special Costs Allocable
to the Subleased Premises shall be binding on Tenant absent error or violation
of the terms of this Sublease and/or the Master Lease, as applicable. Sublessor
or its agent shall retain records of all data provided by the Building Owner and
shall keep records in reasonable detail showing all other expenditures relevant
to determination of Additional Rent, which records shall be available for
inspection by Tenant at any reasonable time upon 5 days' notice to Sublessor by
Tenant.
6 SERVICES, UTILITIES, CHEMICALS IN FIRE CONTROL ZONE.
6.1 STANDARD BUILDING SERVICES AND CONDITION. The Building Owner is
responsible for providing standard Building services in accordance with the
Master Lease. Sublessor shall exercise good faith efforts to cause the Building
Owner to perform its obligations. Sublessor shall also administer the services
relating to the Special Costs. Sublessor has made no representation or warranty
to Tenant as to the safety, adequacy or operation of the Subleased Premises or
the mechanical, electrical, or air handling systems of the Building, the Special
Area, or Subleased Premises, or the trade equipment and fixtures currently
located in the Subleased Premises, nor as to the suitability of such Subleased
Premises or services for Tenant's particular use. Notwithstanding Section 7.1 of
the Master Lease, neither the Building Owner nor Sublessor shall provide any
janitorial or garbage disposal service to the Subleased Premises, and Tenant
shall be solely responsible therefor. Furthermore, notwithstanding Section 7.3
of the Master Lease, Tenant understands that because of the special systems
installed to provide electricity and other utilities to the Special Area, the
Base Rent does not include any electricity or other utilities to the Subleased
Premises, and that such utilities shall be charged as Special Costs to the
Special Area.
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6.2 INTERRUPTION OF SERVICES. N either Sublessor nor Building Owner
shall be liable for any loss, injury or damage to person or property caused by
or resulting from any variation, interruption, or failure of such services due
to any cause whatsoever, except for loss, injury or damage caused by negligence
or intentional misconduct of Sublessor. No temporary interruption or failure of
such services incident to the making of repairs, alterations or improvements, or
due to accident, strike or conditions or events beyond Sublessor's or Building
Owner's reasonable control shall be deemed an eviction of Tenant or relieve
Tenant from any of Tenant's obligations hereunder.
6.3 ASBESTOS IN TRADE EQUIPMENT. Tenant acknowledges that five fume
hood cabinet doors in the Subleased Premises contain asbestos on the interior
surfaces and that Tenant has had an opportunity to identify and inspect such
items. Concurrently with execution of this Sublease, Sublessor and Tenant shall
both initial a copy of the Floor Plan that shows the exact locations of such
asbestos in the Subleased Premises. Tenant accepts such fume hoods and cabinet
doors "as is" in their existing condition. Tenant shall be responsible for
maintaining such items in a safe condition. If Tenant removes any fume hoods or
cabinet doors, they may be stored in accordance with EXHIBIT D. Sublessor shall
have no responsibility for compliance with any environmental laws or any costs
or expenses related thereto.
6.4 HAZARDOUS MATERIALS IN FIRE CONTROL ZONES. Tenant understands
that each floor of the Building constitutes a separate fire control zone under
the Uniform Building Code and Uniform Fire Code, and that the total amount of
hazardous and flammable substances that may be contained in each such zone is
limited by such codes. Tenant and Sublessor understand and agree that the total
amount of chemicals and other hazardous materials permitted in each zone of the
Building shall be allocated to Building tenants in each zone in accordance with
the proportion of such zone that is occupied by each Building Tenant. Sublessor
and Tenant shall meet as needed to understand and agree upon the amounts of
hazardous materials permitted in each zone and the portion of such amounts
allocated to each of them. Neither Sublessor nor Tenant shall at any time
receive or store any hazardous materials in excess of its permitted portion
without first seeking written approval from the other to use any unutilized
portion of the other party's allocation. Any handling or storage of hazardous
materials in violation of this restriction shall constitute a material breach of
this Sublease.
7. IMPROVEMENTS AND ADDITIONS TO LEASED PREMISES. Upon expiration or
sooner termination of this Sublease, all improvements and additions to the
Subleased Premises, except Tenant's trade equipment and personal property, shall
be deemed property of the Building Owner pursuant to the Master Lease.
B. ASSIGNMENT AND SUBLETTING. Notwithstanding the provisions in the Master
Lease relating to assignment and subletting, Tenant shall not assign, mortgage,
encumber or otherwise transfer this Sublease or sublet the whole or any part of
the Subleased Premises without in each case first obtaining Sublessor's prior
written consent, which consent may be given, withheld, or conditioned in its
sole discretion, and where required, the Building Owner's prior written consent.
However, so long as Tenant is not in default, Tenant may assign or sublet this
Sublease without the need for Sublessor's consent to: (a) an assignee or
subtenant who is the successor to all or a major part of Tenant's business and
has a net worth that is not substantially less than the net worth of Tenant, (b)
a wholly-owned subsidiary of Tenant, (c) a corporation which owns all of the
outstanding voting stock of Tenant, (d) a corporation which is wholly owned by a
majority of the owners of all of the voting stock of Tenant, or (e) a
corporation with or into which Tenant shall merge or consolidate. In any
assignment or subletting, whether or not the consent of Sublessor is required:
(i) Tenant shall give written notice of the assignment or sublease to Sublessor,
including explanation of the legal organization of the assignee or subtenant and
its affiliation with Tenant, and copies of its current financial statements and
annual report, (ii) the planned uses of the Subleased Premises by such assignee
or subtenant shall be limited to office and laboratory uses that do not involve
a materially higher risk of fire, explosion, environmental contamination, or
other casualty and do not require storage of materially higher quantities of
flammable, explosive, or other hazardous substances than under Tenant's use, and
(iii) the assignee or subtenant must execute a written instrument reasonably
satisfactory to Sublessor in which it assumes all obligations of the Tenant
hereunder arising after the date of the assignment or subletting.
Notwithstanding any such assignment or subletting, Tenant shall remain liable to
Sublessor for the performance of the terms and conditions of this Sublease, and
Sublessor may proceed against Tenant, against such assignee or subtenant, or
against both, in any order that Sublessor elects, for enforcement of Sublessor's
rights hereunder. As between Tenant and Sublessor, this provision shall override
the provisions of the Master Lease, but this provision shall not eliminate or
qualify any consents that may also be required of the Building Owner under the
Master Lease.
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9. AGENCY REPRESENTATION. Sublessor has been represented in connection
with this sublease by Kidder Matthew's, and, Inc., and Tenant has been
represented in this transaction by Teutsch Partners. Upon execution of this
Sublease and occupancy by Tenant, Sublessor shall become obligated to pay a
leasing commission equal to 5.0% of the total amount of Base Rent payable by
Tenant over the entire term of the Lease (but excluding any extension under the
right of first opportunity). Such commission shall be payable solely from
monthly Rent collected from Tenant (including the deposit of the Pre-Paid Rent
pursuant to Section 1.8.2) until such commission is fully paid. Such commission
and each installment payment thereof shall be split equally between Kidder,
Matthew's, and Segner, Inc., and Teutsch Partners. Sublessor may pay each
agent's 50% portion of the commission to such agent directly.
10. INDEMNIFICATION.
10.1 INDEMNIFICATION OF SUBLESSOR. Tenant shall indemnify and hold
Sublessor harmless from and against all common law or statutory liabilities,
damages, obligations, losses, claims, civil actions, costs, or expenses,
including attorneys' fees, arising from any act, omission, or negligence of
Tenant or its officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors in or about the Property, or arising from any
injury or damage to any person or property, occurring in or about the Property
as a result of any act, omission or negligence of Tenant, or its officers,
contractors, licensees, agents, employees, guests, or visitors or arising from
any breach or default under this Lease by Tenant. The foregoing provisions shall
not be construed to make Tenant responsible for loss, damage, liability or
expense resulting from injuries to third parties caused by the negligence of
Sublessor, or its officers, contractors, licensees, agents, servants, employees,
guests, invitees, visitors, or other tenants of the Building. Tenant's
obligations under this Section l0. l shall survive the termination or expiration
of this Lease.
10.2 INDEMNIFICATION OF TENANT. Except as provided otherwise in this
Section l 0 or elsewhere in this Sublease, Sublessor shall indemnify and hold
Tenant harmless from and against all common law or statutory liabilities,
damages, obligations, losses, claims, civil actions, costs, or expenses,
including attorneys' fees, arising from any act, omission, or negligence of
Sublessor or its officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors in or about the Property, or arising from any
injury or damage to any person or property, occurring in or about the Property
as a result of any act, omission or negligence of Sublessor, or its officers,
contractors, licensees, agents, employees, guests or visitors or arising from
any breach or default under this Lease by Sublessor. The foregoing provisions
shall not be construed to make Sublessor responsible for loss, damage, liability
or expense resulting from injuries to persons or property, sustained by Tenant
or third parties caused by theft or by any act or negligence of Tenant, or its
officers, contractors, licensees, agents, employees, invitees, other tenants or
occupants of the Building. Sublessor's obligations under this Section 10.2 shall
survive the termination or expiration of the Lease.
11. SUBLESSOR OBLIGATIONS RELATING TO MASTER LEASE.
11.1 PAYMENT OF RENT. Sublessor covenants that it will pay all rent
(and other charges) and perform all of its other obligations under the Master
Lease.
11.2 BREACH OF MASTER LEASE. Sublessor shall not do or permit
anything to be done which would be a breach or default under the Master Lease or
which would cause the Master Lease to be terminated or forfeited, and Sublessor
shall indemnify, defend and hold Tenant harmless from and against any and all
claims, demands losses, damages, and reasonable costs and expenses arising out
of or relating to Sublessor's breach or default under the Master Lease, so long
as Sublessor's breach was not caused by Tenant's breach under this Sublease.
11.3 BUILDING OWNER'S DEFAULT. Sublessor agrees that it will contact
Building Owner promptly on behalf of Tenant if requested to do so by Tenant to
cause Building Owner to perform Building Owner's obligations under the Master
Lease. If Building Owner shall default in any of its obligations under the
Master Lease and such breach adversely affects Tenant, Tenant shall be entitled,
but not obligated, to participate in the enforcement of Sublessor's rights
against Building Owner and in any recovery or relief obtained, provided Tenant
shall pay to Sublessor the reasonable expenses of any such action or proceeding
allocable to the Subleased Premises. Sublessor will promptly give to Building
Owner each notice which Tenant delivers to Sublessor advising of any default by
Building Owner under the Master Lease. If, after written request from Tenant,
Sublessor shall fail or refuse to take appropriate action for the enforcement of
Sublessor's rights against Building Owner, Tenant shall have the right, but not
the obligation, to exercise, in its own name and/or in the name of Sublessor,
all the rights to enforce performance on the part of Building Owner as are
available to Sublessor under the Master Lease or at law or equity.
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11.4 BUILDING OWNER'S CONSENT. Whenever Building Owner's consent is
required under this Sublease and/or the Master Lease and Sublessor agrees that
such consent should be given, Sublessor shall exercise good faith efforts,
without substantial expenditure of funds or incurrence of substantial
liabilities, to obtain the consent of Building Owner.
12. ADOPTION AND INCORPORATION OF MASTER LEASE. Any subtenant of the
Sublessor is required under the Master Lease to assume the obligations of the
Sublessor with respect to its subleased premises, including but not limited to
obligations relating to use, occupancy, care and maintenance, insurance,
condemnation, indemnification, lien protection, assignment and subletting, and
other matters, and Tenant hereby assumes such obligations with respect to the
Subleased Premises. Furthermore, the terms of this Sublease have been
intentionally abbreviated in reliance on the parties adoption and incorporation
of the provisions of the Master Lease that are attached as EXHIBIT E.
Consequently, in addition to the provisions set forth in Sections l- l 1 above,
Sublessor and Tenant hereby adopt and incorporate as though fully set forth in
this Sublease and to the fullest extent possible, all of the terms and
provisions of the Master Lease that are attached hereto as EXHIBIT E, subject to
the following explanations and qualifications:
12.1 REFERENCES TO LEASE. All references in the Master Lease to the
"Lease," as adopted within this Sublease, must be read and interpreted
reasonably within the context of this Sublease, and will generally be
interpreted to mean this Sublease.
12.2 REFERENCES TO PREMISES. All references in the Master Lease to
the "Premises," as adopted within this Sublease, must be read and interpreted
reasonably within the context of this Sublease, and will generally be
interpreted to mean the Subleased Premises.
12.3 REFERENCES TO LANDLORD. All references in the Master Lease to
the "Landlord," as adopted within this Sublease, must be read and interpreted
reasonably in the context of which they are made. Accordingly, all references to
the "Landlord" in the context of rights or obligations relating to the Building
as a whole or necessarily relating to the owner of the Building (e.g., damage
to, condemnation of, access to, or liens affecting all or a substantial portion
of the Building and common areas, provision of services to the Building,
Building signage, indemnification relating to liabilities affecting the Building
or Building Owner, subordination, attornment, and other rights relating to
mortgagees of the Building) shall be deemed to mean the Building Owner, as the
owner of the Building and the landlord under the Master Lease. However, all
references to "Landlord" in the context of rights and obligations relating to
the Subleased Premises (e.g., indemnification relating to liabilities affecting
the Sublessor's premises or the Sublessor, damage to, condemnation of, access
to, or liens affecting the Subleased Premises, ) shall be deemed to mean the
Sublessor, as the landlord under the Sublease. All references to "Landlord" with
respect to common contractual provisions between lessor and lessee (e.g., waiver
of subrogation, assignment and subletting, provisions governing default, default
remedies, and bankruptcy, non-waiver, holdover, notices, costs and attorneys'
fees, etc. ) shall mean the Sublessor, as the landlord under this Sublease.
12.4 REFERENCES TO TENANT. All references in the Master Lease to the
"Tenant," as adopted within this Sublease, must be read and interpreted
reasonably in the context of which they are made. Accordingly, all references to
the "Tenant" in the context of rights and obligations relating to the Subleased
Premises (e.g., insurance requirements, indemnification, damage to, condemnation
of, access to, or liens affecting the Subleased Premises) shall be deemed to
mean the Tenant, as the tenant under the Sublease. All references to "Tenant"
with respect to common contractual provisions between lessor and lessee (e.g.,
waiver of subrogation, assignment and subletting, provisions governing default,
default remedies and bankruptcy, subordination and attornment, non-waiver,
holdover, notices, costs and attorneys' fees, etc.) shall mean the Tenant, as
the tenant under this Sublease. Any references to the "Tenant" that have meaning
only in the context of the Master Lease shall have no meaning within the context
of this Sublease.
12.5 PROVISIONS OF MASTER LEASE REQUIRING SPECIAL INTERPRETATION.
12.5.1 PROVISIONS NOT APPLICABLE TO SUBLEASE. Notwithstanding
the foregoing adoption and incorporation of the Master Lease, the following
provisions of the Master Lease shall not have any effect as between Sublessor
and Tenant, although certain of them may continue to grant rights to the
Building Owner, as landlord, or impose obligations upon Sublessor and Tenant, as
tenants in the building:
- - Section 7.1, second paragraph, second sentence
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- - Section 7.3, second paragraph, second and third sentences
- - Section 7.4
- - Section 11
- - Section 29
- - Section 36.6
- - Section 36.8
- - Section 36.14
12.5.2 PROVISIONS REQUIRING MODIFICATION OR CLARIFICATION. The
following provisions of the Master Lease, although adopted and incorporated in
the Sublease, shall be amended, clarified, or supplemented as follows:
- - With respect to Section 13.1 (Damage and Repair), Sublessor agrees that if the
Building, including the Subleased Premises, is damaged by fire or other cause
and there is an obligation or election to rebuild, Sublessor shall repair and
restore any part of the tenant improvements in the Subleased Premises that are
not repaired or restored by the Building Owner (other than tenant improvements
installed by Tenant), so that the Subleased Premises are substantially identical
to their condition upon commencement of this Sublease. However, Sublessor
believes that under such circumstances Building Owner would have responsibility
to restore all such tenant improvements, and this provision shall not be
construed as an admission to Building Owner of any contrary interpretation under
the Master Lease.
- - With respect to Section 20 (Default), the parties confirm that after a
material uncured default by Tenant and removal of Tenant and re-letting of the
Subleased Premises by Sublessor, the Sublease shall not terminate automatically
(as suggested in Section 20.~.1), but instead shall terminate only upon the
written election of Sublessor. When the Sublessor elects to terminate the
Sublease, the general description of Sublessor's remedy set forth in the last
sentence of Section 20.5 shall not apply, inasmuch as the measure of Sublessor's
damages is more specifically defined in Section 20.8.2. Notwithstanding any
provision to the contrary, each party acknowledges its duty to undertake
reasonable efforts to mitigate is damages in the event of a default by the other
party.
- - With respect to Section 21 (Subordination and Attornment), if Sublessor
encumbers its leasehold interest in the Subleased Premises with a mortgage or
deed of trust, this Sublease shall be subordinate to such mortgage or deed of
trust and Tenant shall be obligated to execute a written instrument to
acknowledge such subordination only if Sublessor obtains from the lender a
written non-disturbance agreement that provides substantially the following:
So long as Tenant performs its obligations under the Sublease, no foreclosure
of, deed given in lieu of foreclosure of, or sale under the mortgage or deed of
trust, and no steps or procedures, taken under the mortgage or deed of trust,
shall affect Tenant's rights under the Sublease and any transferee who receives
Sublessor's interest in the Subleased Premises as a result of such foreclosure
or deed in lieu of foreclosure shall assume all of Sublessor's obligations under
this Sublease arising after the date of transfer.
- - With respect to Section 27 (Notices), notices to Tenant shall be sent to the
address set forth above, and shall not be sent to Tenant at the address of the
Subleased Premises.
- - With respect to Section 7 of the Third Amendment to the Master Lease, the term
"Expansion Space" includes certain expansion space under the Master Lease,
including the Subleased Premises; the term "Trade Improvements" means the items
described in Exhibit G that are located in the Subleased Premises; and the term
"Mechanical Systems" means the special utilities and services that comprise the
Special Costs. The parties have included only those portions of such Section 7
that impose obligations upon Tenant.
12.6 INCONSISTENCIES BETWEEN MASTER LEASE PROVISIONS AND SUBLEASE.
Certain provisions of the Master Lease have not been included in EXHIBIT E
because they have effectively been "wrapped into" or overridden by the
provisions contained in Sections 1-12 of this Sublease. Nevertheless, in the
event of any irreconcilable conflict between the provisions of Sections I
through 12 of this Sublease and the provisions of the Master Lease included in
EXHIBIT E that are hereby adopted as part of the Sublease, the provisions of
Sections I-12 of this Sublease shall control.
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Executed as of the date first set forth above.
SUBLESSOR: PATHOGENESIS CORPORATION.
a Delaware corporation
By: /s/ Shashi Karan
-----------------------------------
Name: Shashi Karan
Title: Controller
TENANT: IMMUNEX CORPORATION
a Washington corporation
By /s/ D. G. Southern
-----------------------------------
Name: D. G. Southern
Title: Sr. Vice President
108
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Exhibit 10.22
THIRD AMENDMENT
TO
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT
("Amendment") is made and entered into as January 31, 1997, by and between '1'H
H. PORT OF SEATTLE, a Washington special purpose municipal corporation
("Seller"), and IMMUNEX CORPORATION, a Washington corporation (.Buyer.).
RECITALS
A. Seller and Buyer entered into a Real Estate Purchase and Sale Agreement
dated as of July 18, 1994, which was amended by First Amendment to Real Estate
Purchase and Sale Agreement dated April 7, 1995 and Second Amendment to Real
Estate Purchase and Sale Agreement dated June 1, 1996 (as amended,
"Agreement".), pursuant to which Seller agreed to sell and Buyer agreed to buy
approximately 29 acres of real property known as Terminal 88, as more
particularly described on EXHIBIT A to the Agreement (."Property"). All
capitalized terms not defined herein shall have the meanings given them in the
Agreement.
B. Seller and Buyer desire to amend the Agreement as set forth in this
Amendment.
AGREEMENT
IN CONSIDERATION of the respective agreements hereinafter set forth, Seller
and Buyer agree as follows:
1. CLOSING DATE. Seller and Buyer acknowledge that, as of the date hereof,
Buyer's Contingencies set forth in Sections 4.3(g)-(h) of the Agreement (among
others) have not been satisfied. The "Closing Date" shall be extended to
December 1, 1997, or such other date prior thereto as Seller and Buyer may agree
to in writing, provided that all of Buyer's Contingencies and Seller's
Contingencies have then been either satisfied or waived in accordance with
Sections 4.3-4.6 of the Agreement. Seller acknowledges that Buyer's
Contingencies set forth in Sections 4.3(b), (c), (d), (e) and (f) have been
satisfied.
2. CARRYING COSTS. Buyer shall pay to Seller carrying costs for the
Property at the rate of 7.25% of the Purchase Price per annum, compounded
annually, for the period beginning on July 18, 1994 and ending on January 31,
1996. Buyer shall have no obligation to pay carrying costs for the period
beginning on February 1, 1996 and ending on May 31, 1996. Buyer shall pay
carrying costs for the Property at the rate of 3.625% of the Purchase Price per
annum, compounded annually, for the period beginning on June 1, 1996 and ending
on January 31, 1997. Buyer shall have no obligation to pay carrying costs for
the
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Property after January 31, 1997. Buyer shall pay all accrued carrying costs in a
lump sum at closing. Notwithstanding the foregoing, if closing fails to occur
for any reason, Buyer shall have no obligation to pay any carrying costs for the
Property.
Section 2.3 of the Agreement is hereby deleted. Any references to Section
2.3 of the Agreement shall mean this Section 2 of this Amendment.
3. EFFECT OF AMENDMENT. Except as set forth in this Amendment, all of the
terms of the Agreement are hereby ratified and confirmed and shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
SELLER: THE PORT OF SEATTLE, a limited purpose
municipal corporation
By /s/ M.R. Dinsmore
Name M.R. Dinsmore
Title Executive Director
BUYER: IMMUNEX CORPORATION, a
Washington corporation
By /s/ D. G. Southern
Name D. G. Southern
Title Senior Vice President
110
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Exhibit 10.23
IMMUNEX CORPORATION
1993 STOCK OPTION PLAN
AS AMENDED AND RESTATED ON FEBRUARY 13, 1997
SECTION 1. PURPOSE
The purpose of the Amended and Restated 1993 Stock Option Plan (this "Plan") is
to provide a means whereby selected employees, directors and officers of Immunex
Corporation (the "Company"), or of any parent or subsidiary (as defined in
subsection 5.8 and referred to hereinafter as "related corporations") thereof,
may be granted incentive stock options and/or nonqualified stock options to
purchase the Common Stock (as defined in Section 3) of the Company, in order to
attract and retain the services or advice of such employees, directors and
officers and to provide added incentive to such persons by encouraging stock
ownership in the Company.
Section 2. Administration
This Plan shall be administered by a Stock Option Plan Administration Committee
(the "Committee" or "Plan Administrator") appointed by the Board of Directors of
the Company (the "Board") consisting of two or more members of the Board. If and
so long as the Common Stock is registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended from time to time (the "Exchange
Act"), the Board shall consider in selecting the Plan Administrator and the
membership of any committee acting as Plan Administrator of the Plan with
respect to any persons subject or likely to become subject to Section 16 under
the Exchange Act the provisions regarding (a) "outside directors" as
contemplated by Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"), and (b) "nonemployee directors" as contemplated by Rule 16b-3
under the Exchange Act. The Board may delegate the responsibility for
administering the Plan with respect to designated classes of eligible
Participants to different committees, subject to such limitations as the Board
deems appropriate. Committee members shall serve for such term as the Board may
determine, subject to removal by the Board at any time.
2.1 Procedures
The Board shall designate one of the members of the Plan Administrator as
chairman. The Plan Administrator may hold meetings at such times and places as
it shall determine. The acts of a majority of the members of the Plan
Administrator present at meetings at which a quorum exists, or acts reduced to
or approved in writing by all Plan Administrator members, shall be valid acts of
the Plan Administrator.
2.2 Responsibilities
Except for the terms and conditions explicitly set forth in this Plan, the Plan
Administrator shall have the authority, in its discretion, to determine all
matters relating to the options to be granted under this Plan, including
selection of the individuals to be granted options, the number of shares to be
subject to each option, the exercise price, and all other terms and conditions
of the options. Grants under this Plan need not be identical in any respect,
even when made simultaneously. The interpretation and construction by the Plan
Administrator of any terms or provisions of this Plan or any option issued
hereunder, or of any rule or regulation promulgated in connection herewith,
shall be conclusive and binding on all interested parties, so long as such
interpretation and construction with respect to incentive stock options
correspond to the requirements of Section 422 of the Code, the regulations
thereunder and any amendments thereto.
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2.3 Section 16(b) Compliance and Bifurcation of Plan
Notwithstanding anything in this Plan to the contrary, the Board, in its
absolute discretion, may bifurcate this Plan so as to restrict, limit or
condition the use of any provision of this Plan to participants who are officers
and directors subject to Section 16 of the Exchange Act without so restricting,
limiting or conditioning this Plan with respect to other participants.
Section 3. Stock Subject to This Plan
The stock subject to this Plan shall be the Company's Common Stock, par value
$.01.01 per share (the "Common Stock"), presently authorized but unissued.
Subject to adjustment as provided in Section 7, the aggregate amount of Common
Stock to be delivered upon the exercise of all options granted under this Plan
shall not exceed 6,225,267 shares. If any option granted under this Plan shall
expire or be surrendered, exchanged for another option, cancelled or terminated
for any reason without having been exercised in full, the unpurchased shares
subject thereto shall thereupon again be available for purposes of this Plan,
including for replacement options which may be granted in exchange for such
expired, surrendered, exchanged, cancelled or terminated options.
Section 4. Eligibility
An incentive stock option may be granted only to an individual who, at the time
the option is granted, is an employee of the Company or any related corporation.
A nonqualified stock option may be granted to any employee, director or officer
of the Company or any related corporation, whether an individual or an entity.
Any party to whom an option is granted under this Plan shall be referred to
hereinafter as an "Optionee."
Section 5. Terms and Conditions of Options
Options granted under this Plan shall be evidenced by written agreements which
shall contain such terms, conditions, limitations and restrictions as the Plan
Administrator shall deem advisable and which are not inconsistent with this
Plan. Notwithstanding the foregoing, options shall include or incorporate by
reference the following terms and conditions:
5.1 Number of Shares and Price
The maximum number of shares that may be purchased pursuant to the exercise of
each option and the price per share at which such option is exercisable (the
"exercise price") shall be as established by the Plan Administrator; provided,
however, that the maximum number of shares with respect to which an option or
options may be granted to any Optionee in any one fiscal year of the Company
shall not exceed 200,000 shares (the "Maximum Annual Optionee Grant"); however,
the Company may make additional one-time grants of up to 200,000 shares to newly
hired employees, provided further that the Plan Administrator shall act in good
faith to establish the exercise price which shall be not less than the fair
market value per share of the Common Stock at the time the option is granted
with respect to incentive stock options and not less than the par value per
share of the Common Stock at the time the option is granted with respect to
nonqualified stock options and also provided that, with respect to incentive
stock options granted to greater than 10% shareholders, the exercise price shall
be as required by subsection 6.1.
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5.2 Term and Maturity
Subject to the restrictions contained in Section 6 with respect to granting
incentive stock options to greater than 10% shareholders, the term of each
incentive stock option shall be as established by the Plan Administrator and, if
not so established, shall be 10 years from the date it is granted but in no
event shall it exceed 10 years. The term of each nonqualified stock option
shall be as established by the Plan Administrator and, if not so established,
shall be 10 years. To ensure that the Company or related corporation will
achieve the purpose and receive the benefits contemplated in this Plan, any
option granted to any Optionee hereunder shall, unless the condition of this
sentence is waived or modified in the agreement evidencing the option or by
resolution adopted at any time by the Plan Administrator, be exercisable
according to the following schedule:
<TABLE>
<CAPTION>
Period of Optionee's Continuous Relationship Portion of Total Option Which Is Exercisable
With the Company or Related Corporation From
the Date the Option Is Granted
<S> <C> <C>
after one year 20%
after two years 40%
after three years 60%
after four years 80%
after five years 100%
</TABLE>
5.3 Exercise
Subject to the vesting schedule described in subsection 5.2, each option may be
exercised in whole or in part at any time and from time to time; provided,
however, that no fewer than 20% of the shares purchasable under the option (or
the remaining shares then purchasable under the option, if less than 20%) may be
purchased upon any exercise of option rights hereunder and that only whole
shares will be issued pursuant to the exercise of any option and that the
exercise price shall not be less than the par value per share of the Common
Stock at the time the option is exercised. During an Optionee's lifetime, any
options granted under this Plan are personal to him or her and are exercisable
solely by such Optionee. Options shall be exercised by delivery to the Company
of notice of the number of shares with respect to which the option is exercised,
together with payment of the exercise price.
5.4 Payment of Exercise Price
Payment of the option exercise price shall be made in full at the time the
notice of exercise of the option is delivered to the Company and shall be in
cash, bank certified or cashier's check or personal check (unless at the time of
exercise the Plan Administrator in a particular case determines not to accept a
personal check) for the Common Stock being purchased.
The Plan Administrator can determine at any time before exercise that additional
forms of payment will be permitted. To the extent permitted by applicable laws
and regulations (including, but not limited to, federal tax and securities laws
and regulations and state corporate law), and unless the Plan Administrator
determines otherwise, an option also may be exercised, either singly or in
combination with one or more of the alternative forms of payment authorized by
this Section 5.4 by:
(a) tendering (either actually or by attestation) shares of stock of the
Company held by an Optionee having a fair market value equal to the exercise
price, such fair market value to be determined in good faith by the Plan
Administrator; provided, however, that payment in stock held by an Optionee
shall not be made unless the stock shall have been owned by the Optionee for a
period of at least six months (or any shorter period necessary to avoid a charge
to the Company's earnings for financial accounting purposes); or
(b) delivery of a properly executed exercise notice, together with
irrevocable instructions to a broker, all in accordance with the regulations of
the Federal Reserve Board, to promptly deliver to the Company the amount of sale
or loan proceeds to pay the exercise price and any federal, state or local
withholding tax obligations that may arise in connection with the exercise.
In addition, the exercise price for shares purchased under an option may be
paid, either singly or in combination with one or more of the alternative forms
of payment authorized by this Section 5.4, by (y) delivery of a full-recourse
promissory note executed by the Optionee; provided that (i) such note delivered
in connection with an incentive stock option shall, and such note delivered in
connection with a nonqualified stock option may, in the sole discretion of the
Plan Administrator, bear interest at a rate specified by the Plan Administrator
but in no case less than the rate required to avoid imputation of interest
(taking into account any exceptions to the imputed interest rules) for federal
income tax purposes, (ii) the Plan Administrator
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in its sole discretion shall specify the term and other provisions of such note
at the time an incentive stock option is granted or at any time prior to
exercise of a nonqualified stock option, (iii) the Plan Administrator may
require that the Optionee pledge to the Company for the purpose of securing the
payment of such note the shares of Common Stock to be issued to the Optionee
upon exercise of the option and may require that the certificate representing
such shares be held in escrow in order to perfect the Company's security
interest, and (iv) the Plan Administrator in its sole discretion may at any time
restrict or rescind this right upon notification to the Optionee; or (z) such
other consideration as the Plan Administrator may permit.
5.5 Withholding Tax Requirement
The Company or any related corporation shall have the right to retain and
withhold from any payment of cash or Common Stock under this Plan the amount of
taxes required by any government to be withheld or otherwise deducted and paid
with respect to such payment. At its discretion, the Company may require an
Optionee receiving shares of Common Stock to reimburse the Company for any such
taxes required to be withheld by the Company and withhold any distribution in
whole or in part until the Company is so reimbursed. In lieu thereof, the
Company shall have the right to withhold from any other cash amounts due or to
become due from the Company to the Optionee an amount equal to such taxes. The
Company may also retain and withhold or the Optionee may elect, subject to
approval by the Company at its sole discretion, to have the Company retain and
withhold a number of shares having a market value not less than the amount of
such taxes required to be withheld by the Company to reimburse the Company for
any such taxes and cancel (in whole or in part) any such shares so withheld.
5.6 Holding Periods
5.6.1 Securities Exchange Act Section 16
If an individual subject to Section 16 of the Exchange Act sells shares of
Common Stock obtained upon the exercise of a stock option within six months
after the date the option was granted, such sale may result in short-swing
profit recovery under Section 16(b) of the Exchange Act.
5.6.2 Taxation of Stock Options
The Plan Administrator may require an Optionee to give the Company prompt notice
of any disposition of shares of Common Stock acquired by the exercise of an
incentive stock option prior to the expiration of two years after the date of
grant of the option and one year from the date of exercise.
5.7 Nontransferability of Options
Options granted under this Plan and the rights and privileges conferred hereby
may not be transferred, assigned, pledged or hypothecated in any manner (whether
by operation of law or otherwise, other than by will or by the applicable laws
of descent and distribution and shall not be subject to execution, attachment or
similar process. Any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of any option under this Plan or of any right or privilege
conferred hereby, contrary to the Code or to the provisions of this Plan, or the
sale or levy or any attachment or similar process upon the rights and privileges
conferred hereby shall be null and void. Notwithstanding the foregoing, if the
Company permits, an Optionee may, during the Optionee's lifetime, designate a
person who may exercise the option after the Optionee's death by giving written
notice of such designation to the Plan Administrator. Such designation may be
changed from time to time by the Optionee by giving written notice to the Plan
Administrator revoking any earlier designation and making a new designation.
5.8 Termination of Relationship
If the Optionee's relationship with the Company or any related corporation
ceases for any reason other than termination for cause, death or total
disability, and unless by its terms the option sooner terminates or expires,
then the portion of the option which is not exercisable at the time of such
cessation shall terminate immediately upon such cessation, unless the Plan
Administrator determines otherwise, and the Optionee may exercise, for a
three-month period, that portion of the option which is exercisable at the time
of such cessation, and shall terminate at the end of such period following such
cessation as to all shares for which it has not theretofore been exercised,
unless the Plan Administrator determines otherwise. The Plan Administrator
shall have sole discretion in a particular circumstance to extend the exercise
period following such cessation to any date up to the termination or expiration
of the option. If, however, in the case of an incentive stock option, the
Optionee does not exercise the Optionee's option within three months after
cessation of employment, the option will no longer qualify as an incentive stock
option under the Code.
If an Optionee is terminated for cause, any option granted hereunder shall
automatically terminate as of the first discovery by the Company of any reason
for termination for cause, and such Optionee shall thereupon have no right to
purchase any shares pursuant to such option. "Termination for cause" shall mean
dismissal for dishonesty, conviction or confession of a crime punishable by law
(except minor violations), fraud, misconduct or disclosure of confidential
information.
If an Optionee's relationship with the Company or any related corporation is
suspended pending an investigation of whether or not the Optionee shall be
terminated for cause, all the Optionee's rights under any option granted
hereunder likewise shall be suspended during the period of investigation.
If an Optionee's relationship with the Company or any related corporation ceases
because of a total disability, the portion of the Optionee's option that is
exercisable at the time of such cessation shall not terminate or, in the case of
an incentive stock option, cease to be treated as an incentive stock option
until the end of the 12-month period following such cessation (unless
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by its terms it sooner terminates and expires). As used in this Plan, the term
"total disability" refers to a mental or physical impairment of the Optionee
which is expected to result in death or which has lasted or is expected to last
for a continuous period of 12 months or more and which causes the Optionee to be
unable, in the opinion of the Company and two independent physicians, to perform
his or her duties for the Company and to be engaged in any substantial gainful
activity. Total disability shall be deemed to have occurred on the first day
after the Company and the two independent physicians have furnished their
opinion of total disability to the Plan Administrator.
Options granted under this Plan shall not be affected by any change of
relationship with the Company so long as the Optionee continues to be an
employee, director, officer, agent, consultant, advisor or independent
contractor of the Company or of a related corporation. The Plan Administrator,
in its absolute discretion, may determine all questions of whether particular
leaves of absence constitute a termination of services; provided, however, that
with respect to incentive stock options, such determination shall be subject to
any requirements contained in the Code. The foregoing notwithstanding, with
respect to incentive stock options, employment shall not be deemed to continue
beyond the first 90 days of such leave, unless the Optionee's reemployment
rights are guaranteed by statute or by contract.
As used herein, the term "related corporation," when referring to a subsidiary
corporation, shall mean any corporation (other than the Company) in, at the time
of the granting of the option, an unbroken chain of corporations ending with the
Company, if stock possessing 50% or more of the total combined voting power of
all classes of stock of each of the corporations other than the Company is owned
by one of the other corporations in such chain. When referring to a parent
corporation, the term "related corporation" shall mean any corporation in an
unbroken chain of corporations ending with the Company if, at the time of the
granting of the option, each of the corporations other than the Company owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
5.9 Death of Optionee
If an Optionee dies while he or she has a relationship with the Company or any
related corporation or within the three-month period (or 12-month period in the
case of totally disabled Optionees) following cessation of such relationship,
any option held by such Optionee to the extent that the Optionee would have been
entitled to exercise such option, may be exercised within one year after his or
her death by the personal representative of his or her estate or by the person
or persons to whom the Optionee's rights under the option shall pass by will or
by the applicable laws of descent and distribution.
5.10 No Status As Shareholder
Neither the Optionee nor any party to which the Optionee's rights and privileges
under the option may pass shall be, or have any of the rights or privileges of,
a shareholder of the Company with respect to any of the shares issuable upon the
exercise of any option granted under this Plan unless and until such option has
been exercised.
5.11 Continuation of Relationship
Nothing in this Plan or in any option granted pursuant to this Plan shall confer
upon any Optionee any right to continue in the employ or other relationship of
the Company or of a related corporation, or to interfere in any way with the
right of the Company or of any such related corporation to terminate his or her
employment or other relationship with the Company at any time.
5.12 Modification and Amendment of Option
Subject to the requirements of Section 422 of the Code with respect to incentive
stock options and to the terms and conditions and within the limitations of this
Plan, the Plan Administrator may modify or amend outstanding options granted
under this Plan. The modification or amendment of an outstanding option shall
not, without the consent of the Optionee, impair or diminish any of his or her
rights or any of the obligations of the Company under such option. Except as
otherwise provided in this Plan, no outstanding option shall be terminated
without the consent of the Optionee. Unless the Optionee agrees otherwise, any
changes or adjustments made to outstanding incentive stock options granted under
this Plan shall be made in such a manner so as not to constitute a
"modification" as defined in Section 424(h) of the Code and so as not to cause
any incentive stock option issued hereunder to fail to continue to qualify as an
incentive stock option as defined in Section 422(b) of the Code.
5.13 Limitation on Value for Incentive Stock Options
As to all incentive stock options granted under the terms of this Plan, to the
extent that the aggregate fair market value of the stock (determined at the time
the incentive stock option is granted) with respect to which incentive stock
options are exercisable for the first time by the Optionee during any calendar
year (under this Plan and all other incentive stock option plans of the Company,
a related corporation or a predecessor corporation) exceeds $100,000, such
options shall be treated as nonqualified stock options. The previous sentence
shall not apply if the Internal Revenue Service issues a statutory change,
public rule, issues a private ruling to the Company, any Optionee or any
legatee, personal representative or distributee of an Optionee or issues
regulations changing or eliminating such annual limit.
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Section 6. Greater Than 10% Shareholders
6.1 Exercise Price and Term of Incentive Stock Options
If incentive stock options are granted under this Plan to employees who own more
than 10% of the total combined voting power of all classes of stock of the
Company or any related corporation, the term of such incentive stock options
shall not exceed five years and the exercise price shall be not less than 110%
of the fair market value of the Common Stock at the time the incentive stock
option is granted. This provision shall control notwithstanding any contrary
terms contained in an option agreement or any other document.
6.2 Attribution Rule
For purposes of subsection 6.1, in determining stock ownership, an employee
shall be deemed to own the stock owned, directly or indirectly, by or for his or
her brothers, sisters, spouse, ancestors and lineal descendants. Stock owned,
directly or indirectly, by or for a corporation, partnership, estate or trust
shall be deemed to be owned proportionately by or for its shareholders, partners
or beneficiaries. If an employee or a person related to the employee owns an
unexercised option or warrant to purchase stock of the Company, the stock
subject to that portion of the option or warrant which is unexercised shall not
be counted in determining stock ownership. For purposes of this Section 6,
stock owned by an employee shall include all stock actually issued and
outstanding immediately before the grant of the incentive stock option to the
employee.
Section 7. Adjustments Upon Changes in Capitalization
The aggregate number and class of shares for which options may be granted under
this Plan, the number and class of shares covered by each outstanding option and
the exercise price per share thereof (but not the total price), shall all be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a split-up or consolidation of shares or
any like capital adjustment, or the payment of any stock dividend.
7.1 Effect of Liquidation or Reorganization
7.1.1 Cash, Stock or Other Property for Stock
Except as provided in subsection 7.1.2, upon a merger (other than a merger of
the Company in which the holders of Common Stock immediately prior to the merger
have the same proportionate ownership of Common Stock in the surviving
corporation immediately after the merger), consolidation, acquisition of
property or stock, separation, reorganization (other than a mere reincorporation
or the creation of a holding company) or liquidation of the Company, as a result
of which the shareholders of the Company receive cash, stock or other property
in exchange for or in connection with their shares of Common Stock, any option
granted hereunder shall terminate, but the Optionee shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, liquidation or reorganization to exercise such Optionee's option in whole
or in part whether or not the vesting requirements set forth in the option
agreement have been satisfied.
7.1.2 Conversion of Options on Stock for Stock Exchange
If the shareholders of the Company receive capital stock of another corporation
("Exchange Stock") in exchange for their shares of Common Stock in any
transaction involving a merger (other than a merger of the Company in which the
holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, liquidation
or reorganization (other than a mere reincorporation or the creation of a
holding company), the Company and the corporation issuing the Exchange Stock, in
their sole discretion, may determine that all options granted hereunder shall be
converted into options to purchase shares of Exchange Stock instead of
terminating in accordance with the provisions of subsection 7.1.1. The amount
and price of converted options shall be determined by adjusting the amount and
price of the options granted hereunder in the same proportion as used for
determining the number of shares of Exchange Stock the holders of the Common
Stock receive in such merger, consolidation, acquisition of property or stock,
liquidation or reorganization. Unless accelerated by the Board, the vesting
schedule set forth in the option agreement shall continue to apply to the
options granted for the Exchange Stock.
7.2 Fractional Shares
In the event of any adjustment in the number of shares covered by any option,
any fractional shares resulting from such adjustment shall be disregarded and
each such option shall cover only the number of full shares resulting from such
adjustment.
7.3 Determination of Board to Be Final
All Section 7 adjustments shall be made by the Plan Administrator, and its
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. Unless an Optionee agrees otherwise,
any change or adjustment to an incentive stock option shall be made in such a
manner so as not to constitute a "modification" as defined in Section 424(h) of
the Code and so as not to cause his or her incentive stock option issued
hereunder to fail to continue to qualify as an incentive stock option as defined
in Section 422(b) of the Code.
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Section 8. Securities Regulation
Shares shall not be issued with respect to an option granted under this Plan
unless the exercise of such option and the issuance and delivery of such shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, any applicable state securities laws, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance, including the availability, if
applicable of an exemption from registration for the issuance and sale of any
shares hereunder.
Section 9. Amendment and Termination
9.1 Board Action
The Board may at any time suspend, amend or terminate this Plan, provided that
except as set forth in Section 7, and to the extent required for compliance with
Section 422 of the Code or Section 162(m) of the Code or by any applicable law
or requirement, the Company's shareholders must approve within 12 months of the
adoption by the Board any amendment which will:
(a) increase the total number of shares that may be issued under this
Plan;
(b) modify the class of participants eligible for participation in this
Plan; or
(c) otherwise require stockholder approval under any applicable law or
regulation.
Any amendment made to this Plan since its original adoption which would
constitute a "modification" to incentive stock options outstanding on the date
of such amendment, shall not be applicable to such outstanding incentive stock
options, but shall have prospective effect only, unless the Optionee agrees
otherwise.
9.2 Automatic Termination
Unless sooner terminated by the Board, this Plan shall terminate ten years from
the earlier of (a) the date on which this Plan is adopted by the Board or
(b) the date on which this Plan is approved by the shareholders of the Company.
No option may be granted after such termination or during any suspension of this
Plan. The amendment or termination of this Plan shall not, without the consent
of the Optionee, impair or diminish any rights or obligations under any option
theretofore granted under this Plan.
Section 10. Effectiveness of This Plan
This Plan shall become effective upon adoption by the Board so long as it is
approved by a majority of stock represented by shareholders voting either in
person or by proxy at a duly held shareholders' meeting any time within 12
months before or after the adoption of this Plan.
Plan adopted by the Board of Directors on March 11, 1993 and approved by the
sole stockholder on March 11, 1993. Ratified by Board of Directors on June 1,
1993. Amended on July 14, 1993. Amendment and Restatement to increase number
of shares issuable approved by the Board of Directors on February 2, 1995 and by
stockholders on April 26, 1995. Amended and Restated by Board of Directors on
February 13, 1997.
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Exhibit 10.24
IMMUNEX CORPORATION
STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
AMENDED AND RESTATED ON FEBRUARY 13, 1997
SECTION 1. PURPOSES
The purposes of the Immunex Corporation Stock Option Plan for Nonemployee
Directors (this "Plan") are to attract and retain the services of experienced
and knowledgeable nonemployee directors of Immunex Corporation (the "Company")
and to provide an incentive for such directors by providing an opportunity for
stock ownership in the Company.
SECTION 2. SHARES SUBJECT TO THE PLAN
Subject to adjustment in accordance with Section 6 hereof, the total number of
shares of the Company's common stock (the "Common Stock") for which options may
be granted under this Plan is 100,000 as such Common Stock was constituted on
December 13, 1993 (the "Shares"). The Shares shall be shares currently
authorized but unissued or subsequently acquired by the Company and shall
include shares representing the unexercised portion of any option granted under
this Plan which expires or terminates without being exercised in full.
SECTION 3. ADMINISTRATION OF THE PLAN
The administrator of this Plan (the "Plan Administrator") shall be the Board of
Directors of the Company (the "Board"). Subject to the terms of this Plan, the
Plan Administrator shall have the power to construe the provisions of this Plan,
to determine all questions arising hereunder and to adopt and amend such rules
and regulations for the administration of this Plan as it may deem desirable.
SECTION 4. PARTICIPATION IN THE PLAN
4.1 ELIGIBLE DIRECTORS
Each member of the Board elected or appointed who is not otherwise an employee
of the Company, any parent or subsidiary corporation, or a director appointed by
American Cyanamid Company or American Home Products Corporation pursuant to the
Amended and Restated Governance Agreement dated as of December 15, 1992 (an
"Eligible Director") shall be eligible to participate in this Plan.
4.2 INITIAL GRANTS
Each Eligible Director who is elected or appointed for the first time after the
date of adoption of this Plan shall automatically receive the grant of an option
to purchase 10,000 Shares on the day such Eligible Director is initially elected
or appointed.
4.3 ANNUAL GRANTS
Each Eligible Director continuing service as an Eligible Director immediately
following an Annual Meeting of Shareholders shall automatically receive an
option to purchase 5,000 Shares immediately following each year's Annual Meeting
of Shareholders as an annual grant; provided, however, that an Eligible Director
who has received an initial grant of an option to purchase 10,000 Shares on such
date shall not receive an annual grant until the next Annual Meeting.
SECTION 5. OPTION TERMS
Each option granted to an Eligible Director under this Plan and the issuance of
Shares hereunder shall be subject to the following terms:
5.1 OPTION AGREEMENT
Each option granted under this Plan shall be evidenced by an option agreement
(an "Agreement") duly executed on behalf of the Company. Each Agreement shall
comply with and be subject to the terms and conditions of this Plan. Any
Agreement may contain such other terms, provisions and conditions not
inconsistent with this Plan as may be determined by the Plan Administrator.
5.2 OPTION EXERCISE PRICE
The option exercise price for an option granted under this Plan shall be the
closing price, or if there is no closing price, the mean between the high and
the low sale price of the Shares covered by the option on the day the option is
granted on the Nasdaq Stock Market or, if no Common Stock was traded on such
date, on the IMMEDIATELY preceding date on which Common Stock was so traded.
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5.3 VESTING AND EXERCISABILITY
Each option granted to an Eligible Director shall vest and become exercisable in
accordance with the following schedule:
Period of Eligible Directors' Continuous
Service as a Director With the Company Portion of Total Option Which Is
From the Date the Option is Granted Exercisable
Less than twelve months 0%
Twelve months 20%
Twenty-four months 40%
Thirty-six months 60%
Forty-eight months 80%
Sixty months or greater 100%
5.4 TIME AND MANNER OF EXERCISE OF OPTION
Each option may be exercised in whole or in part at any time and from time to
time; provided, however, that no fewer than 100 Shares (or the remaining Shares
then purchasable under the option, if less than 100 Shares) may be purchased
upon any exercise of any option hereunder and that only whole Shares will be
issued pursuant to the exercise of any option. Any option may be exercised by
giving written notice, signed by the person exercising the option, to the
Company stating the number of Shares with respect to which the option is being
exercised, accompanied by payment in full for such Shares, which payment may be
in whole or in part (a) in cash or by check, (b) in shares of Common Stock
already owned for at least six months by the person exercising the option,
valued at fair market value at the time of such exercise, or (c) by delivery of
a properly executed exercise notice, together with irrevocable instructions to a
broker, to properly deliver to the Company the amount of sale or loan proceeds
to pay the exercise price, all in accordance with the regulations of the Federal
Reserve Board.
5.5 TERM OF OPTIONS
Each option shall expire ten years from the date of the granting thereof, but
shall be subject to earlier termination as follows:
(a) In the event that an optionee ceases to be a director of the
Company for any reason other than the death of the optionee the unvested
portion of the options granted to such optionee shall terminate immediately
and the vested portion of the options granted to such optionee may be
exercised by him or her only within three months after the date such
optionee ceases to be a director of the Company.
(b) In the event of the death of an optionee, whether during the
optionee's service as a director or during the three month period referred
to in Section 5.5(a), the unvested portion of the options granted to such
optionee shall terminate immediately and the vested portion of the options
granted to such optionee shall be exercisable, and such options shall
expire unless exercised within twelve months after the date of the
optionee's death, by the legal representatives or the estate of such
optionee, by any person or persons whom the optionee shall have designated
in writing on forms prescribed by and filed with the Company or, if no such
designation has been made, by the person or persons to whom the optionee's
rights have passed by will or the laws of descent and distribution.
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5.6 TRANSFERABILITY
During an optionee's lifetime, an option may be exercised only by the optionee.
Options granted under this Plan and the rights and privileges conferred thereby
shall not be subject to execution, attachment or similar process and may not be
transferred, assigned, pledged or hypothecated in any manner (whether by
operation of law or otherwise) other than by will or by the applicable laws of
descent and distribution. In addition, the Plan Administrator may permit a
recipient of an option to designate in writing during the optionee's lifetime a
beneficiary to receive and exercise options in the event of the optionee's death
(as provided in Section 5.5(b)). Any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of any option under this Plan or of any right
or privilege conferred thereby, contrary to the provisions of this Plan, or the
sale or levy or any attachment or similar process upon the rights and privileges
conferred hereby, shall be null and void.
5.7 HOLDING PERIOD
If an individual subject to Section 16 of the Exchange Act of 1934, as amended
(the "Exchange Act") sells shares of Common Stock obtained upon the exercise of
any option granted under this Plan within six months after the date the option
was granted, such sale may result in short-swing profit recovery under Section
16(b) of the Exchange Act.
5.8 PARTICIPANT'S OR SUCCESSOR'S RIGHTS AS SHAREHOLDER
Neither an optionee nor the optionee's successor(s) in interest shall have any
rights as a shareholder of the Company with respect to any Shares subject to an
option granted to the optionee until such person becomes a holder of record of
such Shares.
5.9 LIMITATION AS TO DIRECTORSHIP
Neither this Plan, nor the granting of an option, nor any other action taken
pursuant to this Plan shall constitute or be evidence of any agreement or
understanding, express or implied, that an optionee has a right to continue as a
director for any period of time or at any particular rate of compensation.
5.10 REGULATORY APPROVAL AND COMPLIANCE
The Company shall not be required to issue any certificate or certificates for
Shares upon the exercise of an option granted under this Plan, or record as a
holder of record of Shares the name of the individual exercising an option under
this Plan, without obtaining to the complete satisfaction of the Plan
Administrator the approval of all regulatory bodies deemed necessary by the Plan
Administrator, and without complying, to the Plan Administrator's complete
satisfaction, with all rules and regulations under federal, state or local law
deemed applicable by the Plan Administrator.
SECTION 6. CAPITAL ADJUSTMENTS
The aggregate number and class of Shares for which options may be granted under
this Plan, the number and class of Shares covered by each outstanding option and
the exercise price per Share thereof (but not the total price) shall all be
proportionately adjusted for any stock dividends, stock splits,
recapitalizations, combinations or exchanges of shares, split-ups, split-offs,
spinoffs, or other similar changes in capitalization. Upon the effective date
of a dissolution or liquidation of the Company, or of a reorganization, merger
or consolidation of the Company with one or more corporations that results in
more than 70% of the outstanding voting shares of the Company being owned by one
or more affiliated corporations or other affiliated entities, or of a transfer
of all or substantially all the assets or more than 70% of the then outstanding
shares of the Company to another corporation or other entity, this Plan and all
options granted hereunder shall terminate. In the event of such dissolution,
liquidation, reorganization, merger, consolidation, transfer of assets or
transfer of stock, each optionee shall be entitled, for a period of twenty days
prior to the effective date of such transaction, to purchase the full number of
shares under his or her option which he or she otherwise would have been
entitled to purchase during the remaining term of such option.
Adjustments under this Section 6 shall be made by the Plan Administrator, whose
determination shall be final. In the event of any adjustment in the number of
Shares covered by any option, any fractional Shares resulting from such
adjustment shall be disregarded and each such option shall cover only the number
of full Shares resulting from such adjustment.
SECTION 7. EXPENSES OF THE PLAN
All costs and expenses of the adoption and administration of this Plan shall be
borne by the Company; none of such expenses shall be charged to any optionee.
SECTION 8. COMPLIANCE WITH RULE 16b-3
It is the intention of the Company that this Plan comply in all respects with
the requirements for a "formula plan" within the meaning attributed to that term
for purposes of Rule 16b-3 promulgated under Section 16(b) of the Exchange Act.
Therefore, if any Plan provision is later found not to be in compliance with
such requirements, that provision shall be deemed null and void, and in all
events this Plan shall be construed in favor of its meeting such requirements.
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SECTION 9. TERMINATION AND AMENDMENT OF THE PLAN
The Board may amend, terminate or suspend this Plan at any time, in its sole and
absolute discretion; provided, however, that if required to qualify this Plan as
a formula plan for purposes of Rule 16b-3 under Section 16(b) of the Exchange
Act, no amendment may be made more than once every six months that would change
the amount, price, timing or vesting of the options, other than to comply with
changes in the Internal Revenue Code of 1986, as amended, or the rules and
regulations thereunder; provided further that no amendment that would (a)
increase the number of Shares that may be issued under this Plan, or (b)
otherwise require shareholder approval under any applicable law or regulation
shall be made without the approval of the Company's shareholders.
SECTION 10. DURATION
This Plan shall continue in effect until December 13, 2003 unless it is sooner
terminated by action of the Board or the Company's shareholders, but such
termination shall not affect the terms of any then-outstanding options.
Adopted by the Company's Board of Directors on December 13, 1993 and approved by
the Company's shareholders on April 27, 1994. Amended and restated by the Board
on February 13, 1997.
121
<PAGE>
Exhibit 21.1
-------------
SUBSIDIARIES OF THE REGISTRANT
SUBSIDIARIES:
Immunex Manufacturing Corporation
Incorporated in the State of Washington
51 University Street
Seattle, WA 98101
122
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statements
(Form S-8 \Nos. 33-59061 and 33-78694) pertaining to the Immunex Corporation
Amended and Restated 1993 Stock Option Plan and Amended and Restated Director
Stock Option Plan of our report dated January 17, 1997, with respect to the
consolidated financial statements and schedule of Immunex Corporation included
in its Annual Report (Form 10-K) for the year ended December 31, 1996.
Ernst & Young, LLP
Seattle, Washington
March 14, 1997
123
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that the individuals whose signatures appear
below, in their capacities as officers and directors of Immunex Corporation (the
"Company"), hereby constitute and appoint Douglas G. Southern their true and
lawful attorney-in-fact, with full power of substitution, to sign on behalf of
the undersigned the Company's Annual Report on Form 10-K for the 1996 fiscal
year pursuant to Section 13 of the Securities and Exchange Act of 1934 and to
file the same, with exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission. Each of the undersigned
does hereby ratify and confirm all that such attorney-in-fact may do or cause to
be done by virtue hereof.
Signature Title Date
- --------- ----- ----
/s/ Joseph J. Carr Director March 3, 1997
- ------------------------- -----------------
(Joseph J. Carr)
- ------------------------- Director -----------------
(Kirby L. Cramer)
- ------------------------- Director -----------------
(Robert A. Essner)
- ------------------------- Director -----------------
(Richard L. Jackson)
- ------------------------- Director -----------------
(John E. Lyons)
- ------------------------- Director -----------------
(Edith W. Martin)
124
<PAGE>
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that the individuals whose signatures appear
below, in their capacities as officers and directors of Immunex Corporation (the
"Company"), hereby constitute and appoint Douglas G. Southern their true and
lawful attorney-in-fact, with full power of substitution, to sign on behalf of
the undersigned the Company's Annual Report on Form 10-K for the 1996 fiscal
year pursuant to Section 13 of the Securities and Exchange Act of 1934 and to
file the same, with exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission. Each of the undersigned
does hereby ratify and confirm all that such attorney-in-fact may do or cause to
be done by virtue hereof.
Signature Title Date
- --------- ----- ----
- ------------------------- Director -----------------
(Joseph J. Carr)
/s/ Kirby L. Cramer Director March 7, 1997
- ------------------------- -----------------
(Kirby L. Cramer)
- ------------------------- Director -----------------
(Robert A. Essner)
- ------------------------- Director -----------------
(Richard L. Jackson)
- ------------------------- Director -----------------
(John E. Lyons)
- ------------------------- Director -----------------
(Edith W. Martin)
125
<PAGE>
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that the individuals whose signatures appear
below, in their capacities as officers and directors of Immunex Corporation (the
"Company"), hereby constitute and appoint Douglas G. Southern their true and
lawful attorney-in-fact, with full power of substitution, to sign on behalf of
the undersigned the Company's Annual Report on Form 10-K for the 1996 fiscal
year pursuant to Section 13 of the Securities and Exchange Act of 1934 and to
file the same, with exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission. Each of the undersigned
does hereby ratify and confirm all that such attorney-in-fact may do or cause to
be done by virtue hereof.
Signature Title Date
- ------------------------- Director -----------------
(Joseph J. Carr)
- ------------------------- Director -----------------
(Kirby L. Cramer)
/s/ Robert A. Essner Director March 4, 1997
- ------------------------- -----------------
(Robert A. Essner)
- ------------------------- Director -----------------
(Richard L. Jackson)
- ------------------------- Director -----------------
(John E. Lyons)
- ------------------------- Director -----------------
(Edith W. Martin)
126
<PAGE>
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that the individuals whose signatures appear
below, in their capacities as officers and directors of Immunex Corporation (the
"Company"), hereby constitute and appoint Douglas G. Southern their true and
lawful attorney-in-fact, with full power of substitution, to sign on behalf of
the undersigned the Company's Annual Report on Form 10-K for the 1996 fiscal
year pursuant to Section 13 of the Securities and Exchange Act of 1934 and to
file the same, with exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission. Each of the undersigned
does hereby ratify and confirm all that such attorney-in-fact may do or cause to
be done by virtue hereof.
Signature Title Date
- ------------------------- Director -----------------
(Joseph J. Carr)
- ------------------------- Director -----------------
(Kirby L. Cramer)
- ------------------------- Director -----------------
(Robert A. Essner)
/s/ Richard L. Jackson Director March 4, 1997
- ------------------------- -----------------
(Richard L. Jackson)
- ------------------------- Director -----------------
(John E. Lyons)
- ------------------------- Director -----------------
(Edith W. Martin)
127
<PAGE>
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that the individuals whose signatures appear
below, in their capacities as officers and directors of Immunex Corporation (the
"Company"), hereby constitute and appoint Douglas G. Southern their true and
lawful attorney-in-fact, with full power of substitution, to sign on behalf of
the undersigned the Company's Annual Report on Form 10-K for the 1996 fiscal
year pursuant to Section 13 of the Securities and Exchange Act of 1934 and to
file the same, with exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission. Each of the undersigned
does hereby ratify and confirm all that such attorney-in-fact may do or cause to
be done by virtue hereof.
Signature Title Date
- ------------------------- Director -----------------
(Joseph J. Carr)
- ------------------------- Director -----------------
(Kirby L. Cramer)
- ------------------------- Director -----------------
(Robert A. Essner)
- ------------------------- Director -----------------
(Richard L. Jackson)
/s/ John E. Lyons Director March 3, 1997
- ------------------------- -----------------
(John E. Lyons)
- ------------------------- Director -----------------
(Edith W. Martin)
128
<PAGE>
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that the individuals whose signatures appear
below, in their capacities as officers and directors of Immunex Corporation (the
"Company"), hereby constitute and appoint Douglas G. Southern their true and
lawful attorney-in-fact, with full power of substitution, to sign on behalf of
the undersigned the Company's Annual Report on Form 10-K for the 1996 fiscal
year pursuant to Section 13 of the Securities and Exchange Act of 1934 and to
file the same, with exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission. Each of the undersigned
does hereby ratify and confirm all that such attorney-in-fact may do or cause to
be done by virtue hereof.
Signature Title Date
- ------------------------- Director -----------------
(Joseph J. Carr)
- ------------------------- Director -----------------
(Kirby L. Cramer)
- ------------------------- Director -----------------
(Robert A. Essner)
- ------------------------- Director -----------------
(Richard L. Jackson)
- ------------------------- Director -----------------
(John E. Lyons)
/s/ Edith W. Martin Director February 27, 1997
(Edith W. Martin)
129
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AS OF DECEMBER 31, 1996 AND THE CONSOLIDATED
STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1996 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 23,861
<SECURITIES> 0
<RECEIVABLES> 15,675
<ALLOWANCES> 597
<INVENTORY> 8,893
<CURRENT-ASSETS> 54,611
<PP&E> 118,059
<DEPRECIATION> 38,038
<TOTAL-ASSETS> 177,787
<CURRENT-LIABILITIES> 31,497
<BONDS> 0
0
0
<COMMON> 648,475
<OTHER-SE> (510,765)
<TOTAL-LIABILITY-AND-EQUITY> 177,787
<SALES> 129,528
<TOTAL-REVENUES> 151,198
<CGS> 21,860
<TOTAL-COSTS> 188,440
<OTHER-EXPENSES> 18,093
<LOSS-PROVISION> 173
<INTEREST-EXPENSE> 293
<INCOME-PRETAX> (53,472)
<INCOME-TAX> 160
<INCOME-CONTINUING> (53,632)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (53,632)
<EPS-PRIMARY> (1.35)
<EPS-DILUTED> (1.35)
</TABLE>
