EXHIBIT
10.41


 


AMENDED
AND RESTATED


 


CANCER
COLLABORATION AGREEMENT


 


BETWEEN


 


EXELIXIS,
INC.


 


AND


 


BRISTOL-MYERS
SQUIBB COMPANY


 


 












[ * ] = CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  1.1

  	
  “Abandoned
  DVT”

  	
  1

  
	
   

  	
  1.2

  	
  “Abandoned
  ET”

  	
  2

  
	
   

  	
  1.3

  	
  “Abandoned
  Target”

  	
  2

  
	
   

  	
  1.4

  	
  “Affiliate”

  	
  2

  
	
   

  	
  1.5

  	
  “Assay”

  	
  2

  
	
   

  	
  1.6

  	
  “Back-up
  Compound”

  	
  2

  
	
   

  	
  1.7

  	
  “BMS
  Collaboration Product”

  	
  2

  
	
   

  	
  1.8

  	
  “BMS DVT
  Product”

  	
  2

  
	
   

  	
  1.9

  	
  “BMS ET
  Product”

  	
  2

  
	
   

  	
  1.10

  	
  “BMS
  Know-How”

  	
  2

  
	
   

  	
  1.11

  	
  “BMS
  Patents”

  	
  2

  
	
   

  	
  1.12

  	
  “BMS
  Product”

  	
  2

  
	
   

  	
  1.13

  	
  “BMS
  Selected DVT”

  	
  2

  
	
   

  	
  1.14

  	
  “BMS
  Selected ET”

  	
  2

  
	
   

  	
  1.15

  	
  “BMS Selected
  Target”

  	
  2

  
	
   

  	
  1.16

  	
  “BMS Sole
  Product”

  	
  2

  
	
   

  	
  1.17

  	
  “Collaboration”

  	
  3

  
	
   

  	
  1.18

  	
  “Collaboration
  Compound”

  	
  3

  
	
   

  	
  1.19

  	
  “Controlled”

  	
  3

  
	
   

  	
  1.20

  	
  “Decision
  Point 1 (DP1) Approval”

  	
  3

  
	
   

  	
  1.21

  	
  “Decision
  Point 2 (DP2) Approval”

  	
  3

  
	
   

  	
  1.22

  	
  “Decision
  Point 3 (DP3) Approval”

  	
  3

  
	
   

  	
  1.23

  	
  “Designated
  Target”

  	
  3

  
	
   

  	
  1.24

  	
  “Designated
  Validated Target”

  	
  3

  
	
   

  	
  1.25

  	
  “Development
  Field”

  	
  3

  
	
   

  	
  1.26

  	
  “Diligent
  Efforts”

  	
  3

  
	
   

  	
  1.27

  	
  “DP1
  Orthologue”

  	
  3

  
	
   

  	
  1.28

  	
  “Draft Target
  Pool”

  	
  4

  
	
   

  	
  1.29

  	
  “Draft
  Validated Target Pool”

  	
  4

  



 


i

















 


	
   

  	
  1.30

  	
  “Eligible
  Target”

  	
  4

  
	
   

  	
  1.31

  	
  “EXEL
  Compound”

  	
  4

  
	
   

  	
  1.32

  	
  “EXEL DP1
  Equivalent”

  	
  4

  
	
   

  	
  1.33

  	
  “EXEL
  Know-How”

  	
  4

  
	
   

  	
  1.34

  	
  “EXEL
  Patents”

  	
  4

  
	
   

  	
  1.35

  	
  “EXEL
  Product”

  	
  4

  
	
   

  	
  1.36

  	
  “EXEL
  Selected ET”

  	
  4

  
	
   

  	
  1.37

  	
  “EXEL
  Selected Target”

  	
  4

  
	
   

  	
  1.38

  	
  “Gene
  Family”

  	
  4

  
	
   

  	
  1.39

  	
  “Genetic
  Entry Point”

  	
  4

  
	
   

  	
  1.40

  	
  “Genetic
  Screen”

  	
  4

  
	
   

  	
  1.41

  	
  “IND”

  	
  5

  
	
   

  	
  1.42

  	
  “Information”

  	
  5

  
	
   

  	
  1.43

  	
  “Initial
  Research Term”

  	
  5

  
	
   

  	
  1.44

  	
  “Invention”

  	
  5

  
	
   

  	
  1.45

  	
  “Joint
  Invention”

  	
  5

  
	
   

  	
  1.46

  	
  “Joint
  Management Team” or “JMT”

  	
  5

  
	
   

  	
  1.47

  	
  “Joint
  Scientific Committee” or “JSC”

  	
  5

  
	
   

  	
  1.48

  	
  “Lead
  Compound”

  	
  6

  
	
   

  	
  1.49

  	
  “Major
  Market”

  	
  6

  
	
   

  	
  1.50

  	
  “MOA
  Agreement”

  	
  6

  
	
   

  	
  1.51

  	
  “Model
  System Target”

  	
  6

  
	
   

  	
  1.52

  	
  “NDA”

  	
  6

  
	
   

  	
  1.53

  	
  “Net
  Sales”

  	
  6

  
	
   

  	
  1.54

  	
  “Nonselected
  Target”

  	
  6

  
	
   

  	
  1.55

  	
  “Patent”

  	
  6

  
	
   

  	
  1.56

  	
  “Pharmacogenomic
  Product”

  	
  6

  
	
   

  	
  1.57

  	
  “Phase I
  Clinical Trial”

  	
  7

  
	
   

  	
  1.58

  	
  “Phase II
  Clinical Trial”

  	
  7

  
	
   

  	
  1.59

  	
  “Phase III
  Clinical Trial”

  	
  7

  



 


ii

















 


	
   

  	
  1.60

  	
  “Phenotypic
  Screen”

  	
  7

  
	
   

  	
  1.61

  	
  “PreDesignated
  Target”

  	
  7

  
	
   

  	
  1.62

  	
  “Product”

  	
  7

  
	
   

  	
  1.63

  	
  “PTP”

  	
  7

  
	
   

  	
  1.64

  	
  “Regulatory
  Approval”

  	
  7

  
	
   

  	
  1.65

  	
  “Remains
  Confidential”

  	
  7

  
	
   

  	
  1.66

  	
  “Research
  Field”

  	
  7

  
	
   

  	
  1.67

  	
  “Research
  Plan”

  	
  7

  
	
   

  	
  1.68

  	
  “Research
  Term”

  	
  7

  
	
   

  	
  1.69

  	
  “Reverted
  Target”

  	
  7

  
	
   

  	
  1.70

  	
  “Selected
  DVT”

  	
  7

  
	
   

  	
  1.71

  	
  “Selected
  ET”

  	
  7

  
	
   

  	
  1.72

  	
  “Selected
  Target”

  	
  7

  
	
   

  	
  1.73

  	
  “Sole
  Invention”

  	
  7

  
	
   

  	
  1.74

  	
  “Subsequent
  Research Term”

  	
  7

  
	
   

  	
  1.75

  	
  “Target”

  	
  8

  
	
   

  	
  1.76

  	
  “Target
  Invention”

  	
  8

  
	
   

  	
  1.77

  	
  “Third
  Party”

  	
  8

  
	
   

  	
  1.78

  	
  “Threshold
  BMS Product”

  	
  8

  
	
   

  	
  1.79

  	
  “Tier 1
  Validation”

  	
  8

  
	
   

  	
  1.80

  	
  “Tier 2
  Validation”

  	
  8

  
	
   

  	
  1.81

  	
  “Tier 2
  Validation Criteria”

  	
  8

  
	
   

  	
  1.82

  	
  “Valid
  Claim”

  	
  8

  
	
   

  	
  1.83

  	
  “VBP”

  	
  8

  
	
  2.

  	
  RESEARCH
  PROGRAM

  	
  8

  
	
   

  	
  2.1

  	
  Overview

  	
  8

  
	
   

  	
  2.2

  	
  Management
  Structure

  	
  8

  
	
   

  	
  2.3

  	
  Joint
  Management Team

  	
  9

  
	
   

  	
  2.4

  	
  Joint
  Scientific Committee

  	
  9

  
	
   

  	
  2.5

  	
  Meetings

  	
  10

  



 


iii

















 


	
   

  	
  2.6

  	
  Research
  Term

  	
  10

  
	
   

  	
  2.7

  	
  Research
  Plan

  	
  10

  
	
   

  	
  2.8

  	
  Genetic
  Entry Points

  	
  11

  
	
   

  	
  2.9

  	
  Identification
  of Model System Targets

  	
  11

  
	
   

  	
  2.10

  	
  Identification
  of Human Orthologues of Model System Targets

  	
  11

  
	
   

  	
  2.11

  	
  Identification
  of Eligible Targets

  	
  12

  
	
   

  	
  2.12

  	
  Interaction
  with MOA Agreement

  	
  12

  
	
   

  	
  2.13

  	
  Obligations
  of Parties

  	
  13

  
	
   

  	
  2.14

  	
  Collaboration
  Guidelines

  	
  13

  
	
   

  	
  2.15

  	
  Conduct of
  Research

  	
  13

  
	
   

  	
  2.16

  	
  Records

  	
  13

  
	
   

  	
  2.17

  	
  Reports

  	
  13

  
	
   

  	
  2.18

  	
  Non-Solicitation

  	
  14

  
	
   

  	
  2.19

  	
  Targets
  Previously Pursued by Entity Acquired by a Party

  	
  14

  
	
   

  	
  2.20

  	
  Identification
  of Designated Validated Targets

  	
  14

  
	
  3.

  	
  SELECTION,
  PURSUIT AND ABANDONMENT OF TARGETS

  	
  15

  
	
   

  	
  3.1

  	
  Target
  Pools.

  	
  15

  
	
   

  	
  3.2

  	
  Disclosure
  of Data Prior to Draft Choice

  	
  15

  
	
   

  	
  3.3

  	
  Draft
  Choice Procedures

  	
  15

  
	
   

  	
  3.4

  	
  Pursuit of
  Selected Targets

  	
  16

  
	
   

  	
  3.5

  	
  Exelixis
  Participation in Development of BMS Products

  	
  17

  
	
   

  	
  3.6

  	
  Target
  Abandonment

  	
  18

  
	
   

  	
  3.7

  	
  Targets
  Other Than Selected Targets

  	
  18

  
	
   

  	
  3.8

  	
  Records

  	
  18

  
	
   

  	
  3.9

  	
  Reports

  	
  19

  
	
   

  	
  3.10

  	
  Expenses

  	
  19

  
	
   

  	
  3.11

  	
  Target
  Status

  	
  19

  
	
  4.

  	
  ADDITIONAL
  CONSIDERATION

  	
  19

  
	
   

  	
  4.1

  	
  Stock
  Purchase Agreement

  	
  19

  
	
   

  	
  4.2

  	
  Rebeccamycin
  Analog License Agreement

  	
  19

  



 


iv

















 


	
  5.

  	
  LICENSES AND
  RELATED RIGHTS

  	
  19

  
	
   

  	
  5.1

  	
  Licenses to
  BMS

  	
  19

  
	
   

  	
  5.2

  	
  License
  Limitations and Option

  	
  22

  
	
   

  	
  5.3

  	
  Licenses to
  Exelixis

  	
  23

  
	
   

  	
  5.4

  	
  License
  Limitations

  	
  25

  
	
   

  	
  5.5

  	
  Rights of
  First Negotiation

  	
  25

  
	
  6.

  	
  EXCLUSIVITY

  	
  25

  
	
   

  	
  6.1

  	
  Exelixis

  	
  25

  
	
   

  	
  6.2

  	
  Independent
  Research

  	
  26

  
	
   

  	
  6.3

  	
  Other
  Research

  	
  27

  
	
  7.

  	
  COMPENSATION

  	
  27

  
	
   

  	
  7.1

  	
  License Fee

  	
  27

  
	
   

  	
  7.2

  	
  Research
  Support.

  	
  27

  
	
   

  	
  7.3

  	
  Milestone
  Payments

  	
  27

  
	
   

  	
  7.4

  	
  Royalty
  Payments

  	
  31

  
	
   

  	
  7.5

  	
  Royalty
  Adjustments

  	
  32

  
	
   

  	
  7.6

  	
  Quarterly
  Payments

  	
  32

  
	
   

  	
  7.7

  	
  Term of
  Royalties

  	
  32

  
	
   

  	
  7.8

  	
  Royalty
  Payment Reports

  	
  33

  
	
   

  	
  7.9

  	
  Payment
  Method

  	
  33

  
	
   

  	
  7.10

  	
  Taxes

  	
  33

  
	
   

  	
  7.11

  	
  Blocked
  Currency

  	
  33

  
	
   

  	
  7.12

  	
  Sublicenses

  	
  33

  
	
   

  	
  7.13

  	
  Foreign
  Exchange

  	
  33

  
	
   

  	
  7.14

  	
  Records;
  Inspection

  	
  33

  
	
   

  	
  7.15

  	
  Interest

  	
  33

  
	
  8.

  	
  INTELLECTUAL
  PROPERTY

  	
  34

  
	
   

  	
  8.1

  	
  Ownership

  	
  34

  
	
   

  	
  8.2

  	
  Disclosure

  	
  34

  
	
   

  	
  8.3

  	
  Patent
  Prosecution and Maintenance; Abandonment

  	
  34

  



 


v

















 


	
   

  	
  8.4

  	
  Enforcement
  of Patent Rights

  	
  36

  
	
   

  	
  8.5

  	
  Defense of
  Third Party Claims

  	
  42

  
	
   

  	
  8.6

  	
  Copyright
  Registrations

  	
  43

  
	
  9.

  	
  CONFIDENTIALITY

  	
  43

  
	
   

  	
  9.1

  	
  Nondisclosure
  of Confidential Information

  	
  43

  
	
   

  	
  9.2

  	
  Exceptions

  	
  43

  
	
   

  	
  9.3

  	
  Authorized
  Disclosure

  	
  44

  
	
   

  	
  9.4

  	
  Termination
  of Prior Agreements

  	
  44

  
	
   

  	
  9.5

  	
  Publicity

  	
  44

  
	
   

  	
  9.6

  	
  Publications

  	
  45

  
	
  10.

  	
  TERM AND
  TERMINATION

  	
  45

  
	
   

  	
  10.1

  	
  Term

  	
  45

  
	
   

  	
  10.2

  	
  Termination
  for Material Breach

  	
  45

  
	
   

  	
  10.3

  	
  Effect of
  Termination; Survival

  	
  46

  
	
  11.

  	
  REPRESENTATIONS
  AND COVENANTS

  	
  47

  
	
   

  	
  11.1

  	
  Mutual
  Authority

  	
  47

  
	
   

  	
  11.2

  	
  Rights in
  Technology

  	
  47

  
	
   

  	
  11.3

  	
  Performance
  by Affiliates

  	
  47

  
	
   

  	
  11.4

  	
  Third
  Party Rights

  	
  48

  
	
   

  	
  11.5

  	
  Notice of
  Infringement or Misappropriation

  	
  48

  
	
  12.

  	
  INDEMNIFICATION
  AND LIMITATION OF LIABILITY

  	
  48

  
	
   

  	
  12.1

  	
  Mutual
  Indemnification

  	
  48

  
	
   

  	
  12.2

  	
  Indemnification
  by BMS

  	
  49

  
	
   

  	
  12.3

  	
  Indemnification
  by Exelixis

  	
  49

  
	
   

  	
  12.4

  	
  Conditions
  to Indemnification

  	
  49

  
	
   

  	
  12.5

  	
  Limitation
  of Liability

  	
  50

  
	
   

  	
  12.6

  	
  Collaboration
  Disclaimer

  	
  50

  
	
  13.

  	
  MISCELLANEOUS

  	
  51

  
	
   

  	
  13.1

  	
  Dispute
  Resolution

  	
  51

  
	
   

  	
  13.2

  	
  Governing
  Law

  	
  51

  



 


vi

















 


	
   

  	
  13.3

  	
  Patents
  and Trademarks

  	
  51

  
	
   

  	
  13.4

  	
  Entire
  Agreement; Amendment

  	
  52

  
	
   

  	
  13.5

  	
  Export
  Control

  	
  52

  
	
   

  	
  13.6

  	
  Bankruptcy

  	
  52

  
	
   

  	
  13.7

  	
  Force
  Majeure

  	
  53

  
	
   

  	
  13.8

  	
  Notices

  	
  54

  
	
   

  	
  13.9

  	
  Consents
  Not Unreasonably Withheld or Delayed

  	
  54

  
	
   

  	
  13.10

  	
  Maintenance
  of Records

  	
  54

  
	
   

  	
  13.11

  	
  United
  States Dollars

  	
  54

  
	
   

  	
  13.12

  	
  No Strict
  Construction

  	
  54

  
	
   

  	
  13.13

  	
  Assignment

  	
  55

  
	
   

  	
  13.14

  	
  Electronic
  Data Interchange

  	
  55

  
	
   

  	
  13.15

  	
  Counterparts

  	
  55

  
	
   

  	
  13.16

  	
  Further
  Actions

  	
  55

  
	
   

  	
  13.17

  	
  Severability

  	
  55

  
	
   

  	
  13.18

  	
  Headings

  	
  55

  
	
   

  	
  13.19

  	
  No Waiver

  	
  55

  
	
  EXHIBIT
  1.39A GENETIC ENTRY POINTS FOR INITIAL RESEARCH TERM

  	
   

  	
  1

  
	
  EXHIBIT
  1.39B GENETIC ENTRY POINTS FOR SUBSEQUENT RESEARCH TERM

  	
   

  	
  2

  
	
  EXHIBIT
  1.44

  	
   

  	
  1

  
	
  EXHIBIT
  1.79

  	
   

  	
  1

  
	
  EXHIBIT
  1.80

  	
   

  	
  1

  
	
  EXHIBIT
  3.11

  	
   

  	
  1

  
	
  EXHIBIT 5.1(A)(VII)

  	
   

  	
  1

  
	
  EXHIBIT
  5.3(D)

  	
   

  	
  1

  
	
  EXHIBIT
  9.5

  	
   

  	
  1

  
					



 












[ * ] = CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


vii

















 












[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


 


AMENDED AND RESTATED


CANCER COLLABORATION AGREEMENT


 


THIS AMENDED AND RESTATED CANCER COLLABORATION AGREEMENT (the
“Amended and Restated Agreement”) is made and entered into as of
December 15, 2003 (the “Amendment Effective Date”) by and between EXELIXIS,
INC., a Delaware corporation having its principal place of business
at 170 Harbor Way, P.O. Box 511, South San Francisco, California 94083-0511
(“Exelixis”), and BRISTOL-MYERS SQUIBB COMPANY, a Delaware
corporation headquartered at 345 Park Avenue, New York, New York, 10154
(“BMS”).  Exelixis and BMS are sometimes
referred to herein individually as a “Party” and collectively as the “Parties.”


 


RECITALS


 


A.                                    BMS
is a multinational health care company that has expertise and capability in
developing and marketing human pharmaceuticals and has research and development
programs.


 


B.                                    Exelixis
is a multinational biotechnology company that has expertise and proprietary
technology relating to genetic model systems, functional genomics and
computational biology and is applying such technology to discover and validate
targets for drug discovery in a variety of disease areas.


 


C.                                    BMS
and Exelixis desire to establish a collaboration to apply such Exelixis
technology and expertise to the identification and characterization of
biochemical pathways and targets in specific research areas relevant to cell
growth and proliferation, to generate small molecule therapeutic or
prophylactic compounds directed against such targets, and to provide for the
development and commercialization of novel therapeutic and prophylactic
products based on such research.


 


D.                                    Exelixis
and BMS entered into the Cancer Collaboration Agreement (the “Agreement”) on
July 17, 2001 (the “Effective Date”) and subsequently amended the
Agreement pursuant to a Letter Amendment effective December 7, 2001 (the
“First Amendment”).


 


E.                                      Exelixis
and BMS now wish to amend further the Agreement and to restate the amended
agreement.


 


NOW, THEREFORE, the Parties agree as
follows:


 


1.                                      DEFINITIONS


 


The following
terms shall have the following meanings as used in this Amended and Restated
Agreement:


 


1.1                               “Abandoned
DVT” means [ * ].


 


 

















 


1.2                               “Abandoned
ET” means [ * ].


 


1.3                               “Abandoned
Target” means an Abandoned DVT or an Abandoned ET.


 


1.4                               “Affiliate”
means, with respect to a particular Party, a person, corporation, partnership,
or other entity that controls, is controlled by or is under common control with
such Party.  For the purposes of the
definition in this Section 1.4, the word “control” (including, with
correlative meaning, the terms “controlled by” or “under the common control
with”) means the actual power, either directly or indirectly through one (1) or
more intermediaries, to direct or cause the direction of the management and
policies of such entity, whether by the ownership of at least fifty percent
(50%) of the voting stock of such entity, or by contract or otherwise.


 


1.5                               “Assay”
means [ * ].


 


1.6                               “Back-up
Compound” means, [ * ].


 


1.7          “BMS Collaboration Product”
means [ * ].


 


1.8                               “BMS
DVT Product” means [ * ].


 


1.9                               “BMS
ET Product” means [ * ].


 


1.10                        “BMS
Know-How” means all Information Controlled by BMS (other than BMS Patents)
and its Affiliates during the term of the Agreement or this Amended and
Restated Agreement that is necessary or reasonably useful for Exelixis to
exercise the rights licensed or granted to it under Sections 5.3 and 5.5 hereof
and/or to perform its obligations to the Collaboration under this Amended and
Restated Agreement.


 


1.11                        “BMS
Patents” means all Patents Controlled by BMS and its Affiliates, including
Patents Controlled jointly with Exelixis, during the term of the Agreement or
this Amended and Restated Agreement that are necessary or reasonably useful for
Exelixis to exercise the rights licensed or granted to it under
Section 5.3 (or which may be acquired by it under Section 5.5 hereof)
and/or to perform its obligations to the Collaboration under this Amended and
Restated Agreement.


 


1.12                        “BMS
Product” means [ * ].


 


1.13                        “BMS
Selected DVT” means [ * ].


 


1.14                        “BMS
Selected ET” means [ * ].


 


1.15                        “BMS
Selected Target” means [ * ].


 


1.16                        “BMS Sole
Product” means [ * ].


 


1.17                        “Collaboration”
means all the activities performed by or on behalf of Exelixis or BMS in the
course of performing work contemplated in Article 2 or Section 3.1 or
3.5.


 


1.18        “Collaboration Compound” means [ * ].


 


2

















 


For clarity, any compound
licensed in by BMS from Third Parties for activity against a BMS Selected
Target shall not be deemed to be a Collaboration Compound for milestone and
royalty purposes hereunder unless such compound is (A) acquired as a result of
the use or subsequently developed through the use, to any material extent, of
any Information relating to such BMS Selected Target that Remained Confidential
to Exelixis at the time of use or (B) developed in a manner or acquired as a
result of activity that would otherwise have infringed a claim of an issued or
published (and subsequently issued) Exelixis Patent.


 


BMS shall not have
any development or commercialization license rights under
Section 5.1(a)(iv) with respect to any compound that fails to meet the
definition of a Collaboration Compound. 
The preceding sentence shall not be interpreted as preventing BMS from
developing or commercializing, on account of its ability to modulate a target
other than a BMS Selected Target, a derivative of a Lead Compound or a Back-up
Compound wherein such derivative (A) was made by BMS pursuant to its license in
Section 5.1(a)(iv), (B) is not a Collaboration Compound and (C) (1) for
which the manufacture and use of such derivative would not infringe an EXEL
Patent and (2) is not manufactured, developed or commercialized through the use
of EXEL Know-How that Remains Confidential at the time of use.


 


1.19                        “Controlled”
means, with respect to any gene, protein, compound, material, Information or
intellectual property right, that the Party owns or has a license to such gene,
protein, compound, material, Information or intellectual property right and has
the ability to grant to the other Party access, a license or a sublicense (as applicable)
to such gene, protein, compound, material, Information or intellectual property
right as provided for herein without violating the terms of any agreement or
other arrangements with any Third Party existing at the time such Party would
be first required hereunder to grant the other Party such access, license or
sublicense.


 


1.20                        “Decision
Point 1 (DP1) Approval” means [ * ].


 


1.21                        “Decision
Point 2 (DP2) Approval” means [ * ].


 


1.22                        “Decision
Point 3 (DP3) Approval” means [ * ].


 


1.23                        “Designated
Target” means [ * ].


 


1.24                        “Designated
Validated Target” means [ * ].


 


1.25                        “Development
Field” means [ * ].


 


1.26                        “Diligent
Efforts” means [ * ].


 


1.27                        “DP1
Orthologue” means [ * ].


 


1.28                        “Draft
Target Pool” means [ * ].


 


1.29                        “Draft
Validated Target Pool” means [ * ].


 


1.30        “Eligible Target” means [ * ].


 


3

















 


1.31                        “EXEL
Compound” means [ * ].


 


1.32        “EXEL DP1 Equivalent” means [ * ].


 


1.33                        “EXEL
Know-How” means all Information Controlled by Exelixis (other than EXEL
Patents or Target Inventions invented solely or jointly by BMS) and its
Affiliates during the term of the Agreement or this Amended and Restated
Agreement that is necessary or reasonably useful for BMS to exercise the rights
licensed or granted to it under Sections 5.1 and 5.2 hereof and/or to perform
its obligations to the Collaboration under this Amended and Restated Agreement.


 


1.34                        “EXEL
Patents” means all Patents Controlled by Exelixis and its Affiliates (other
than Patents claiming Target Inventions invented solely by BMS or jointly by
BMS with Exelixis, but including Patent claiming Target Inventions invented
solely by Exelixis), including Patents Controlled jointly with BMS, during the
term of the Agreement or this Amended and Restated Agreement that are necessary
or reasonably useful for BMS to exercise the rights licensed or granted to it
under Section 5.1 hereof (or which may be acquired by it under Sections
5.2(b) and 5.5 hereof) and/or to perform its obligations to the Collaboration
under this Amended and Restated Agreement.


 


1.35                        “EXEL
Product” means [ * ].


 


1.36                        “EXEL
Selected ET” means [ * ].


 


1.37                        “EXEL
Selected Target” means [ * ].


 


1.38                        “Gene
Family” means (a) a group of at least [ *
] that meet the [ * ]
regarding [ * ] or (b) a group of
at least [ * ] that [ * ].


 


1.39                        “Genetic
Entry Point” means [ * ].


 


1.40                        “Genetic
Screen” means [ * ].


 


1.41                        “IND”
means an Investigational New Drug Application filed with the United States Food
and Drug Administration in conformance with applicable laws and regulations, or
the foreign equivalent of any such application in any other country.


 


1.42                        “Information”
means information, results and data of any type whatsoever, in any tangible or
intangible form whatsoever, including without limitation, databases, practices,
methods, techniques, specifications, formulations, formulae, knowledge,
know-how, skill, experience, test data including pharmacological, biological,
chemical, biochemical, toxicological and clinical test data, analytical and
quality control data, stability data, studies and procedures, and patent and
other legal information or descriptions.


 


1.43                        “Initial
Research Term” means the period commencing on the Effective Date and ending
on the third (3rd) anniversary of the Effective Date.


 


1.44                        “Invention”
means [ * ].


 


4

















 


1.45                        “Joint
Invention” means [ * ].


 


1.46                        “Joint
Management Team” or “JMT” means the committee described in
Section 2.3.


 


1.47                        “Joint
Scientific Committee” or “JSC” means the committee described in
Section 2.4.


 


1.48                        “Lead
Compound” means [ * ].


 


1.49                        “Major
Market” means [ * ].


 


1.50                        “MOA
Agreement” means the Research Collaboration and Technology Transfer
Agreement between Exelixis and BMS dated September 14, 1999, as heretofore
amended and as may be amended from time to time hereafter.


 


1.51        “Model System Target” means [ * ].


 


1.52                        “NDA”
means a New Drug Application filed with the United States Food and Drug
Administration in conformance with applicable laws and regulations, or the
foreign equivalent of any such application in any other country.


 


1.53        “Net Sales” means [ * ].


 


In the event a Product or
Pharmacogenomic Product is sold as an end-user product consisting of a
combination of active functional elements or as a combined product and/or
service, Net Sales, for purposes of determining royalty payments on such
Product or Pharmacogenomic Product, shall be calculated by multiplying the Net
Sales of the end-user product and/or service by the fraction A over A+B, in
which A is the gross selling price of the Product or Pharmacogenomic Product
portion of the end-user product and/or service when such Product or
Pharmacogenomic Product is sold separately during the applicable accounting
period in which the sales of the end-user product were made, and B is the gross
selling price of the other active elements and/or service, as the case may be,
of the end-user product and/or service sold separately during the accounting
period in question.  All gross selling
prices of the elements of such end-user product and/or service shall be
calculated as the average gross selling price of the said elements during the
applicable accounting period for which the Net Sales are being calculated.  In the event that, in any country or
countries, no separate sale of either such above-designated Product or
Pharmacogenomic Product or such above designated elements of the end-user
product and/or service are made during the accounting period in which the sale
was made or if gross retail selling price for an active functional element,
component or service, as the case may be, cannot be determined for an
accounting period, Net Sales allocable to the Product or Pharmacogenomic
Product in each such country shall be determined by mutual agreement reached in
good faith by the Parties prior to the end of the accounting period in question
based on an equitable method of determining same that takes into account, on a
country by country basis, variations in potency, the relative contribution of
each active agent, component or service, as the case may be, in the
combination, and relative value to the end user of each active agent, component
or service, as the case may be.


 


5

















 


Notwithstanding the
foregoing, it is agreed that drug delivery vehicles, adjuvants, and excipients
shall not be deemed to be “active ingredients” or “active functional elements,”
the presence of which in a Product or Pharmacogenomic Product would be deemed
to create a combination product subject to the terms of the preceding
paragraph.


 


1.54                        “Nonselected
Target” shall have the meaning set forth in Section 3.3(h).


 


1.55                        “Patent”
means (a) unexpired letters patent (including inventor’s certificates) which
have not been held invalid or unenforceable by a court of competent
jurisdiction from which no appeal can be taken or has been taken within the
required time period (and which have not been admitted to be invalid or
unenforceable through reissue, disclaimer or otherwise, or been abandoned in
accordance with or as permitted by the terms of this Amended and Restated
Agreement or by mutual written agreement), including without limitation any
substitution, extension, registration, confirmation, reissue, re-examination,
supplementary protection certificates, confirmation patents, patent of
additions, renewal or any like filing thereof and (b) pending applications for
letters patent which have not been canceled, withdrawn from consideration,
finally determined to be unallowable by the applicable governmental authority for
whatever reason (and from which no appeal is or can be taken), and/or abandoned
in accordance with or as permitted by the terms of this Amended and Restated
Agreement or by mutual written consent, including without limitation any
continuation, division or continuation-in-part thereof and any provisional
applications.


 


1.56                        “Pharmacogenomic
Product” means [ * ].


 


1.57                        “Phase I
Clinical Trial” means a trial on sufficient numbers of normal volunteers
and patients that is designed to establish that a pharmaceutical product is
safe for its intended use, and to support its continued testing in Phase II
Clinical Trials.


 


1.58                        “Phase II
Clinical Trial” means a trial on sufficient numbers of patients that is
designed to establish the safety and biological activity of a pharmaceutical
product for its intended use, and to define warnings, precautions and adverse
reactions that are associated with the pharmaceutical product in the dosage
range to be prescribed.


 


1.59                        “Phase III
Clinical Trial” means a trial on sufficient numbers of patients that is
designed to establish that a pharmaceutical product is safe and efficacious for
its intended use, and to define warnings, precautions and adverse reactions
that are associated with the pharmaceutical product in the dosage range to be
prescribed, and to support Regulatory Approval of such pharmaceutical product
or label expansion of such pharmaceutical product.


 


1.60                        “Phenotypic
Screen” means [ * ].


 


1.61        “PreDesignated Target” means [ * ].


 


1.62                        “Product”
means [ * ].


 


1.63                        “PTP”
means [ * ].


 


6

















 


1.64                        “Regulatory
Approval” means any and all approvals (including supplements, amendments,
pre- and post-approvals, pricing and reimbursement approvals), licenses,
registrations or authorizations of any national, supra-national (e.g., the
European Commission or the Council of the European Union), regional, state or
local regulatory agency, department, bureau, commission, council or other
governmental entity, that are necessary for the manufacture, distribution, use
or sale of a Product in a regulatory jurisdiction.


 


1.65                        “Remains
Confidential” means, with respect to Information generated pursuant to the
Collaboration that is used by or on behalf of a Party or its Affiliate or
sublicensee, that such Information, at the time of such use, was not then in
the public domain and was not then known to a Party or any of its Affiliates or
licensees as a result of disclosure by a Third Party entitled to disclose same
without restriction as to confidentiality.


 


1.66                        “Research
Field” means cancer research [ * ].


 


1.67                        “Research
Plan” shall have the meaning set forth in Section 2.7.


 


1.68                        “Research
Term”  “
means the Initial Research Term plus the Subsequent Research Term.


 


1.69                        “Reverted
Target” shall have the meaning set forth in Section 3.1.


 


1.70                        “Selected
DVT” means [ * ].


 


1.71                        “Selected
ET” means [ * ].


 


1.72                        “Selected
Target” means a Selected ET or a Selected DVT.


 


1.73                        “Sole
Invention” means [ * ].


 


1.74                        “Subsequent
Research Term” means the period commencing on the third (3rd)
anniversary of the Effective Date and ending, unless earlier terminated
pursuant to Sections 2.6(a), [ * ]
or 10.2, [ * ], on the eighth (8th)
anniversary of the Effective Date.


 


1.75                        “Target”
means [ * ].


 


1.76                        “Target
Invention” means [ * ].


 


1.77                        “Third
Party” means any entity other than (i) Exelixis, (ii) BMS or (iii) an
Affiliate of either Party.


 


1.78                        “Threshold
BMS Product” means [ * ].


 


1.79                        “Tier 1
Validation” means [ * ].


 


1.80                        “Tier 2
Validation” means [ * ].


 


1.81                        “Tier 2
Validation Criteria” means [ * ].


 


7

















 


1.82                        “Valid
Claim” means (a) a claim in an issued Patent, as described in
Section 1.55(a), which has not (i) expired or been canceled, (ii) been
declared invalid by an unreversed and unappealable decision of a court or other
appropriate body of competent jurisdiction, (iii) been admitted to be invalid
or unenforceable through reissue, disclaimer or otherwise, or (iv) been
abandoned in accordance with or as permitted by the terms of this Amended and
Restated Agreement or by mutual written agreement, or (b) a claim under a
pending application for a Patent, as described in Section 1.55(b), that
has been pending five (5) years or less from its date of filing, and which have
not been canceled, withdrawn from consideration, finally determined to be
unallowable by the applicable governmental authority for whatever reason (and
from which no appeal is or can be taken), or abandoned.


 


1.83                        “VBP”
means the Third Party with whom Exelixis, as of the Amendment Effective Date,
has an alliance to discover, develop and commercialize therapeutics in the
areas of [ * ].


 


2.                                      RESEARCH
PROGRAM


 


2.1                               Overview.  The general goals and intent of the
Collaboration are to apply the Exelixis technology to discovering Eligible
Targets and Designated Validated Targets that may be useful for the discovery
and development of small molecule drugs for the prevention, treatment or cure
of cancer.  One of the goals of the
research to be conducted during the Subsequent Research Term is the
identification of [ * ] using
technologies that (a) subject to Section 2.7, are [ * ], and (b) the JSC believes will [ * ]; provided that when the JMT and JSC
allocate resources and set research priorities, they take into account [ * ] in the course of the
Collaboration.  [ * ]. 
The genes arising from such research shall be used to identify human
genes which encode proteins likely to be suitable for the development of a
small molecule therapeutic or prophylactic products for the treatment of
cancer.  As set forth in more detail in
Section 3.3, each Party shall [ * ]
choose those human genes that qualify as Eligible Targets and Designated
Validated Targets for development of a small molecule cancer drug.


 


2.2                               Management
Structure.  The Parties agree to
establish a multi-level committee structure to manage and direct the
Collaboration and the relationship of the Parties in pursuing the research and
development goals of this Amended and Restated Agreement.  The committee structure is intended to
facilitate decision making and management of the various Collaboration
activities of the Parties, and each Party agrees to use good faith, cooperative
efforts to facilitate and assist the efforts of such committees.  The overall management of the Collaboration
with respect to work performed by the Parties under the Research Plan shall be
vested in the Joint Management Team (the “JMT”), with responsibility, as
further discussed in Section 2.3, for establishing the strategic direction
of the Collaboration and for managing and directing the research efforts of the
Parties under the Collaboration.  The
day-to-day management and direction of the Research Program shall be managed by
the Joint Scientific Committee (the “JSC”), which shall report to and be
managed by the JMT.  [ * ]. 
Any dispute that cannot be resolved by the JSC for matters that come
before it shall be resolved by the JMT.


 


8

















 


2.3                               Joint
Management Team.


 


(a)                                  Membership.  The Joint Management Team (the “JMT”) shall
be composed of four members, two members appointed by each Party.  [ * ],
each Party shall appoint two representatives from its senior management team to
the JMT.  Each Party may replace its JMT
representatives at any time upon written notice to the other Party.  Exelixis shall designate one of its
representatives as Chairperson for the period from the Effective Date until the
first anniversary of the Effective Date. 
Thereafter, the Parties shall alternately designate a Chairperson of the
JMT for each subsequent contract year. 
The Chairperson shall be responsible for scheduling meetings, preparing
and circulating an agenda in advance of each meeting, and preparing and issuing
minutes of each meeting within thirty (30) days thereafter.  Any JMT member may add topics to the draft
agenda.


 


(b)                                  Responsibilities.  During [ *
], the JMT shall meet a minimum of [
* ] as provided in Section 2.5; thereafter, the JMT shall meet
at the request of either Party, which request may be made by each Party not
more than [ * ], unless otherwise
agreed to by [ * ].  The JMT shall supervise and direct the JSC,
evaluate the progress of research under the Research Plan and monitor
compliance with the diligence provisions set forth in Sections 2.7 and 3.4, and
it will make the final decisions regarding [
* ].  To the extent necessary
to carry out its responsibilities, a Party’s JMT members shall be granted
access to the other Party’s Confidential Information relevant to any decision
required to be made by the JMT.  Thus,
it may be that members of the JMT, in assessing modifications to the Research
Plan, assessing the results generated in the course of carrying out the
Research Plan, or making determinations as required in this Section 2.3,
may need to be granted access to higher levels of the proprietary or
Confidential Information of the other Party than is provided to the JSC or to
the employees of such Party working on the Collaboration.  The JMT shall discuss in good faith and
agree on the level of such access that is needed to achieve the goals and
intent of the Parties.


 


2.4                               Joint
Scientific Committee.


 


(a)                                  Membership.  The Joint Scientific Committee (the “JSC”)
shall be composed of four members.  Each
Party may invite, with the approval of the other Party (which shall not be
unreasonably withheld), additional employees or consultants (provided such
employees and consultants have contractual confidentiality obligations to such
Party that are at least as stringent as those set forth in this Amended and
Restated Agreement) to attend one (1) or more meetings of the JSC as ad hoc,
non-voting guests.  [ * ], each Party shall appoint two
representatives to the JSC, one such representative being the individual at the
Party with primary responsibility for the day-to-day management and execution
of the Research Plan.  The JSC will
report directly to the JMT and shall take its direction from the JMT.  Each Party may replace its appointed JSC
representatives at any time upon written notice to the other Party.  Exelixis shall designate one of its
representatives as Chairperson of the JSC. 
The Chairperson shall be responsible for scheduling meetings, preparing
and circulating an agenda in advance of each meeting, and preparing and issuing
minutes of each meeting within thirty (30) days thereafter.  Any JSC member may add topics to the draft
agenda.


 


(b)                                  Responsibilities.  During [ *
], the JSC shall meet at a minimum [
* ].  Except for decisions
made by the BMS members of the JSC pursuant to Section 1.30(c), the JSC


 


9

















 


shall operate by [ * ]. 
It shall be responsible for the planning and execution of the Research
Program.  At its meetings, the JSC shall
evaluate the data generated by the Parties in the course of carrying out the
Research Plan, shall prioritize the Genetic Entry Points, shall perform those
activities specifically described in this Article 2 and Article 3 and
may consider modifying the Research Plan. 
At the next JMT meeting, the JSC shall summarize for the JMT the
progress in carrying out the Research Plan since the last JMT meeting, bring to
the attention of the JMT any overarching issues or significant changes in a
Research Plan, and address any issues raised by the JMT at its previous
meeting.  The JSC shall also prioritize
projects within the Research Plan.  To
the extent necessary to carry out its responsibilities, a Party’s JSC members
shall be granted access to the other Party’s Confidential Information relevant
to any decision required to be made by the JSC.


 


2.5                               Meetings.  The Parties shall endeavor to
schedule meetings of the JMT and the JSC [
* ].  Meetings for the JSC
shall be held on an alternating basis in New Jersey and in San Francisco.  When possible, the meeting of the JMT should
occur at the same location as the JSC meeting, with the JMT meeting occurring
after the meeting of the JSC.  With the
consent of the representatives of each Party serving on a particular committee,
other representatives of each Party may attend meetings of that committee as
nonvoting observers.  A meeting of a
committee may be held by audio or video teleconference with the consent of each
Party, provided that at least half of the minimum number of meetings for that
committee shall be held in person. 
Meetings of a committee shall be effective only if at least one
representative of each Party is present or participating.  Each Party shall be responsible for all of
its own expenses of participating in the committee meetings.


 


2.6                               Research
Term.


 


(a)                                  BMS
may terminate the Subsequent Research Term early by providing written notice
thereof to Exelixis [ * ] prior to
the fifth anniversary of the Effective Date. 
If BMS provides such notice to Exelixis, then the Subsequent Research
Term shall terminate on the [ * ]
fifth anniversary of the Effective Date. 
The research funding commitments of BMS set forth in Section 7.2(a)
shall remain in force throughout the Initial Research Term, and the research
funding commitments of BMS set forth in Section 7.2(b) shall remain in force
until the termination of the Subsequent Research Term pursuant to this
Section 2.6(a), [ * ] or the
effective date of any termination of this Amended and Restated Agreement
pursuant to Section 10.2.


 


(b)                                  If,
during [ * ], Exelixis or any
Exelixis Affiliate controlling Exelixis, [ *
].


 


(c)                                  For
purposes of this Amended and Restated Agreement, [ * ].


 


(d)                                  The
Parties may extend the Subsequent Research Term for [ * ] upon their mutual written agreement executed at least [ * ].


 


2.7                               Research
Plan.  The Parties have agreed in
writing upon a detailed plan for the research to be carried out by the Parties
during [ * ] and prior to the
selection of each Eligible Target or Designated Validated Target as a Selected
Target (the “Research Plan”).  The JSC
shall review the Research Plan [ * ]
and may propose to the JMT revised versions of the Research Plan


 


10

















 


that are
consistent with the terms of this Amended and Restated Agreement.  The JMT shall review, revise (if necessary)
and approve all such proposals for revising the Research Plan.  Once approved by the JMT, such revised
Research Plan shall replace the prior Research Plan.  During [ * ], each
Party shall use Diligent Efforts to perform the tasks assigned to it in the
Research Plan then in effect.  The
Parties acknowledge and understand that the Research Plan can only be changed
to add new Genetic Entry Points if the procedures set forth in Section 2.8
have been carried out.  At its first
meeting after the Amendment Effective Date, the JSC shall discuss the Parties’
proposals for revising the Research Plan to cover [ * ].  Such revised
Research Plan shall be approved by the JMT no later than [ * ]. 
The Parties anticipate that such Research Plan and the Research Plan for
such [ * ] will include new target
identification work by Exelixis.  The
JSC may authorize additional target identification work during [ * ] if the JSC believes that [ * ] is unlikely [ * ]. 
The Parties anticipate that the Research Plans for the [ * ] will be focused on [ * ]. 
In the course of revising the Research Plan, the JSC shall consider [ * ].


 


2.8                               Genetic
Entry Points.  The Genetic Entry
Points on which research may be conducted by Exelixis during the Initial
Research Term are listed on Exhibit 1.39A. 
Potential additional Genetic Entry Points on which research may be
conducted by Exelixis during the Subsequent Research Term are listed in Exhibit
1.39B.  The JSC shall decide whether
genes listed or described in Exhibits 1.39A and 1.39B shall become Genetic
Entry Points, and shall determine the priority of the research to be conducted
on each of the Genetic Entry Points listed on Exhibits 1.39A and 1.39B.  Further additional Genetic Entry Points may be
designated as set forth in this Section 2.8.  Prioritization of work on the Genetic Entry Points shall be
determined by the JSC.  [ * ], the JSC shall review the Genetic
Entry Points [ * ], and shall
determine when a Genetic Entry Point should be re-prioritized, or removed from
further research, under the Research Plan. 
At its sole discretion, Exelixis may designate new Genetic Entry Points
in the Research Field upon which Exelixis shall commence research pursuant to
the Collaboration, if consistent with the relative priority given such new Genetic
Entry point by the JSC.  [ * ].


 


2.9                               Identification
of Model System Targets.  During [ * ], Exelixis shall use Diligent Efforts
to identify, in accordance with the Research Plan, Model System Targets [ * ].


 


2.10                        Identification
of Human Orthologues of Model System Targets.


 


(a)                                  Exelixis
shall conduct a good faith search of publicly available databases for mammalian
orthologues of each Model System Target it identifies pursuant to
Section 2.9.  [ * ], Exelixis shall present to the BMS
members of the JSC a list of all human orthologues newly identified by Exelixis
pursuant to the preceding sentence.  [ * ].


 


(b)                                  At
each JSC meeting, for each human orthologue [
* ], Exelixis shall present to the JSC the sequence of and a summary
of the data [ * ].


 


(c)                                  If
no human orthologue has been identified for a non-human Model System Target at
the time Exelixis presents such Model System Target to the JSC, then the JSC
shall decide whether further research should be done [ * ].


 


(d)                                  Upon
termination of the Initial Research Term (other than due to termination of the
Amended and Restated Agreement), if any Model System Targets for which


 


11

















 


no human
orthologue has been identified remain, then, unless otherwise provided in the
Research Plan approved by the JSC for the first year of the Subsequent Research
Term, either Party may at its own discretion and expense perform, [ * ] research intended to identify one (1)
or more human orthologues of such Model System Target.  [ * ].


 


(e)                                  [ * ].


 


(f)                                    [ * ].


 


(g)                                 [ * ].


 


(h)                                 [ * ].


 


(i)                                    [ * ].


 


2.11                        Identification
of Eligible Targets.


 


(a)                                  The
Parties will use reasonable efforts to mutually agree [ * ]. 
[ * ] shall bear the costs
it incurs in the course of performing the responsibilities allocated to
it.  [
* ] shall share all resulting information from such work with the
other Party at or prior to the next meeting of the JSC.  Upon completion of the work reasonably
necessary to determine whether a human orthologue meets the Eligible Target
criteria, [ * ] shall promptly
decide and record in writing whether each such human orthologue qualifies as an
Eligible Target.  [ * ].


 


(b)                                  If
during any JSC meeting during [ * ],
a Party selects as a Selected ET any Eligible Target that was designated by the
JSC or JMT as [ * ] prior to such
selection, then such Party shall, as a result of such selection, [ * ] with respect to [ * ]. 
Such selection shall nevertheless [ *
] as a result of such selection. 
If, after a BMS Collaboration Compound has achieved PTP status with
respect [ * ], another BMS
Collaboration Compound achieves PTP status with respect [ * ], then BMS agrees thereafter to [ * ], and such [ * ] for all purposes, including milestone and royalty
payments set forth in Article 7, provided, that (i) [ * ], and (ii) such [ * ] during the Initial Research Term.


 


(c)                                  [ * ].


 


(d)                                  Commencing
on the Amendment Effective Date, the Parties shall limit their work pursuant to
this Section 2.11 to [ * ].  All work pursuant to this Section 2.11
shall cease [ * ].  During the Subsequent Research Term, the
Parties shall devote their efforts to [ * ].


 


2.12                        Interaction
with MOA Agreement.


 


(a)                                  After
the Effective Date, BMS agrees that it will not provide any oncology compounds
to Exelixis pursuant to the MOA Agreement (it being understood that BMS may
provide such compounds pursuant to this Amended and Restated Agreement if the
JMT so requests for the purpose of determining Genetic Entry Points or
identifying PreDesignated Targets).  [ * ].


 


12

















 


(b)


 


(i)                                    [ * ].


 


(ii)                                [ * ].


 


(iii)                            [ * ].


 


(c)                                  [ * ].


 


(d)                                  [ * ].


 


(e)                                  The
agreements of the Parties set forth in this Section 2.12 shall bind the
Parties with respect to this Amended and Restated Agreement and the MOA
Agreement.  If the Parties decide that
it would be helpful to execute a formal amendment of the MOA Agreement that
reflects any of these agreements, then the Parties shall draft and execute such
amendment in good faith and such amendment shall be consistent with the terms
of this Section 2.12.


 


2.13                        Obligations
of Parties.  Exelixis and BMS shall
provide the JSC and its authorized representatives with [ * ].


 


2.14                        Collaboration
Guidelines.  Subject to the terms of
this Amended and Restated Agreement, the activities and resources of each Party
shall be managed by such Party, acting independently and in its individual
capacity.  The relationship between
Exelixis and BMS is that of independent contractors, and neither Party shall
have the power to bind or obligate the other Party in any manner, other than as
is expressly set forth in this Amended and Restated Agreement.


 


2.15                        Conduct of
Research.  The Parties shall use
Diligent Efforts to conduct their respective tasks throughout the Collaboration
and shall conduct the Collaboration in good scientific manner, and in
compliance in all material respects with the requirements of applicable laws,
rules and regulations and all applicable good laboratory practices to attempt
to achieve their objectives as efficiently and expeditiously as reasonably
practicable.


 


2.16                        Records.  Each Party shall maintain complete and
accurate records of all work conducted under the Collaboration and all results,
data and developments made pursuant to its efforts under the Collaboration.  Such records shall be complete and accurate
and shall fully and properly reflect all work done and results achieved in the
performance of the Collaboration in sufficient detail and in good scientific
manner appropriate for patent and regulatory purposes.


 


2.17                        Reports.  During [ *
], each Party shall report to the JSC no less than [ * ] and will submit to the other Party
and the JSC a [ * ] written
progress report summarizing the work performed under the Research Program.  If reasonably necessary for a Party to
perform its work under the Collaboration or to exercise its rights under the
Amended and Restated Agreement, such Party may request that the other Party
provide more detailed information and data regarding such results reported by
such other Party, and such other Party shall promptly provide the requesting
Party with information and data as is reasonably related to such request.  All such reports shall be considered
Confidential Information of the Party providing same.


 


13

















 


2.18                        Non-Solicitation.  During [ * ],
each Party and its Affiliates shall not: [ * ].


 


2.19                        Targets Previously Pursued by Entity Acquired by
a Party.  Subject to Section 3.3(d):


 


(a)                                  The provisions set forth in this
Section 2.19 shall apply in the event that either Party (the “Acquiring
Party”) or an Affiliate of an Acquiring Party acquires or merges with another
company (the “Acquired Entity”) [ * ].


 


(b)                                  [ * ].


 


(c)                                  [ * ].


 


(d)                                  [ * ].


 


(e)                                  [ * ].


 


(f)                                    [ * ].


 


(g)                                 [ * ].


 


2.20                        Identification
of Designated Validated Targets.


 


(a)                                  The
JSC may designate based on the research under Section 2.8, as a
PreDesignated Target, [ * ].


 


(b)                                  The
JSC will use reasonable efforts to mutually agree upon [ * ]. 
[ * ] shall [ * ] in the course of [ * ]. 
[ * ] shall [ * ] with the other Party at or prior to
the next meeting of the JSC.  [ * ].


 


(c)                                  Upon
completion of the [ * ], the JSC
shall promptly decide whether to designate such [ * ].  In the course
of making such decision, the JSC shall consider [ * ]  The Parties will
use reasonable efforts to [ * ]
associated with performing [ * ].  [ * ]
shall bear [ * ] in the course of [ * ]. 
Subject to this Section 2.20(c), [
* ] shall share [ * ]
at or prior to the next meeting of the JSC.


 


(d)                                  Upon
completion of the work reasonably necessary to determine [ * ], the JSC shall promptly decide and
record in writing [ * ].  The Parties understand and agree that, in a
given circumstance, the [ * ] need
not be sole determining factors regarding whether [ * ].


 


(e)                                  BMS
will be entitled to [ * ].  BMS may [
* ] if the JMT agrees that [ * ]
without unreasonably jeopardizing [ * ].  BMS’ obligation to [ * ]. 
During the period of time that a BMS Selected ET is [ * ], such Target shall be treated as, and
BMS shall retain the rights, benefits and privileges previously granted
hereunder with respect to such BMS Selected ET, provided that Exelixis shall be
deemed to have sufficient rights under the EXEL Patents, EXEL Know-How, Target
Inventions, BMS Patents and BMS Know-How to perform its obligations under the
Research Plan with respect to such BMS Selected ET.


 


14

















 


(f)                                    If
a BMS Selected ET [ * ] by BMS
pursuant to Section 2.20(e) does not [ *
], then [ * ].


 


(g)                                 [ * ].


 


(h)                                 [ * ].


 


3.                                      SELECTION,
PURSUIT AND ABANDONMENT OF TARGETS


 


3.1                               Target
Pools.


 


(a)                                  Draft
Target Pool.  Subject to Section 2.12, each Eligible
Target shall be added to the Draft Target Pool upon its designation as an
Eligible Target by the JSC, [ * ].


 


(b)                                  Draft
Validated Target Pool.  [ * ].


 


3.2                               Disclosure
of Data Prior to Draft Choice.


 


(a)                                  To
ensure that each Party has access to all pertinent data being developed by the
other Party relating to each Eligible Target and Designated Validated Target in
sufficient time to enable each Party to evaluate such Eligible Target and
Designated Validated Target before a JSC meeting in which such Eligible Target
and Designated Validated Target can be selected pursuant to Section 3.3,
each Party shall provide a written, reasonably detailed summary of primary data
arising from its research on such Eligible Target and Designated Validated
Target in the performance of its obligations to the Collaboration [ * ] to the other Party’s JSC members at
least [ * ] before such JSC meeting.  [ * ].


 


(b)                                  [ * ].


 


3.3                               Draft
Choice Procedures.


 


(a)                                  At
each JSC meeting [ * ], the
Parties shall, subject to Section 2.10(g), select Eligible Targets from
the Draft Target Pool as Selected ETs.  [ * ].


 


(b)                                  [ * ].


 


(i)                                    [ * ].


 


(ii)                                [ * ].


 


(c)


 


(i)                                    [ * ].


 


(ii)                                [ * ].


 


(d)                                  If
BMS decides to deem, as an Eligible Target, a human orthologue of a Model
System Target that would not otherwise qualify as an Eligible Target solely on
account of Exelixis’ previous grant of an non-exclusive license of the scope
described in Section 1.30(c),


 


15

















 


and BMS selects
such Eligible Target as a BMS Selected ET pursuant to Section 3.3, then
BMS shall have all of the rights and obligations set forth in this Amended and
Restated Agreement with respect to BMS Selected ETs, except that all exclusive
licenses granted by Exelixis under Section 5.1 with respect to such BMS
Selected ET shall, except for the grant under Section 5.1(a)(iii), become
non-exclusive (although Exelixis shall endeavor thereafter not to grant,
subject to Article 6, additional rights with respect to small molecule
modulators of such BMS Selected ET in the Development Field).  The principles of this Section 3.3(d)
shall also apply to Designated Validated Targets that arose from PreDesignated
Targets that would not otherwise have qualified as such solely on account of
Exelixis’ previous grant of a non-exclusive license of the scope described in
part (c) of the definition of PreDesignated Target.  [ * ].


 


(e)                                  At
the JSC meeting [ * ], the Parties
shall select any remaining Eligible Targets from the Draft Target Pool or ET
Validation Pool as Selected ETs.  [ * ].


 


(f)                                    The
Parties may modify, by mutual written agreement, the draft choice procedures
set forth in this Section 3.3.


 


(g)                                 Subject
to Sections 3.3(h) and 3.3(i), at each JSC meeting [ * ], the Parties shall, subject to Section 2.10(g),
select Designated Validated Targets from the Draft Validated Target Pool as
Selected DVTs.  [ * ].


 


(h)                                 At
the final JSC meeting [ * ].  Neither Party may select any Designated
Validated Targets as Selected DVTs after such JSC meeting.  All Designated Validated Targets that are in
the Draft Validated Target Pool immediately following such final JSC meeting
shall be [ * ], and the Draft
Validated Target Pool shall thereafter cease to exist.  [ * ].


 


(i)                                    If
a Party selects [ * ], such Party
shall, as a result of such selection, [ * ].


 


(j)                                    Within [
* ] of a Party’s selection of a
Selected DVT, the Parties shall enter into a Materials Transfer Agreement, such
Material Transfer Agreement to be negotiated prior to [ * ]
and attached as Exhibit 3.3(j), under which the non-selecting Party shall
provide the selecting Party with the [
* ] agreed upon [ * ].


 


(k)                                At
the final JSC meeting [ * ], the
Parties shall select any remaining Designated Targets [ * ].


 


(l)                                    At
the final JSC meeting [ * ].


 


3.4                               Pursuit
of Selected Targets.


 


(a)                                  General
Diligence.  For each Selected Target
selected by a particular Party, such Party shall use good faith Diligent
Efforts [ * ].


 


(b)                                  Specific
Diligence for Selected ETs.  If a
Party or its sublicensee [ * ],
then such Party shall be deemed to have demonstrated Diligent Efforts with
respect to [ * ].


 


(c)                                  Specific
Diligence for Selected DVTs.  If a
Party or its sublicensee, [ * ],
then such Party shall be deemed to have demonstrated Diligent Efforts with
respect to [ * ].


 


16



















 


(d)                                  Breach
of Diligence.  Breach of the
diligence obligations set forth in this Section 3.4 shall not constitute a
breach of this Amended and Restated Agreement. 
The sole remedy available to each Party upon the other Party’s breach of
the diligence obligations is that the relevant Target ceases to be a Selected
Target and becomes an Abandoned Target.


 


3.5                               Exelixis
Participation in Development of BMS Products.


 


(a)                                  During
[ * ], BMS may request in writing
that Exelixis develop a high throughput assay to assess the activity of small
molecule compounds with respect to a Selected Target chosen by BMS; provided,
that [ * ] shall not be [ * ] for purposes of this
Section 3.5.  Such request shall
specify (i) the desired formatting criteria for the assay and all other
material specifications for the assay and (ii) the date by which delivery, even
if (i) is met, would be too late for BMS’ needs (the “Assay Delivery
Date”).  If Exelixis wishes to develop
such an assay, it shall notify BMS in writing [
* ] and shall indicate the date on which Exelixis anticipates
commencing such work.  The Parties shall
agree in writing on the specific formatting criteria for the assay and all
other material specifications for the assay (including without limitation, if
appropriate, the acceptance period and a range of variances that is mutually
agreed upon by the Parties).  Unless
otherwise set forth in such writing, the Assay Delivery Date shall be the date
originally requested by BMS.  Exelixis
shall use good faith Diligent Efforts to develop such an assay and deliver it
to BMS within [ * ] of the Assay
Delivery Date.


 


(i)                                    If,
prior to the Assay Delivery Date, Exelixis notifies BMS that it will not be
able to deliver the assay within [ * ]
of the Assay Delivery Date and identifies a new date by which it intends to
deliver the assay (the “Substitute Delivery Date”), then BMS shall have [ * ] to notify Exelixis in writing if it
wants Exelixis to terminate development of the assay.  If BMS does not so notify Exelixis, then BMS shall not reject the
assay or refuse to make the milestone payment set forth in Section 7.3(b)
due to the fact that the assay was not delivered within [ * ] of the Assay Delivery Date.  BMS may nevertheless reject such assay if it
is not delivered within [ * ] of
the Substitute Delivery Date.


 


(ii)                                BMS
shall have [ * ] following
Exelixis’ delivery of an assay pursuant to this Section 3.5(a), to notify
Exelixis in writing if BMS has determined that the delivered assay does not
meet the specifications mutually agreed by the Parties pursuant to
Section 3.5(a).  If BMS does not so
notify Exelixis within such [ * ]
period, then the assay will be considered accepted and shall be deemed an
“Assay” and BMS shall make the milestone payment set forth in
Section 7.3(b) with respect to such Assay.


 


(iii)                            Any
and all disagreements between the Parties regarding whether a particular assay
delivered by Exelixis meets the specifications mutually agreed by the Parties
pursuant to Section 3.5(a) shall be handled [ * ].


 


(iv)                               Exelixis
covenants that it will not [ * ].  The foregoing covenant shall not be
interpreted to restrict Exelixis’ ability to use Information it generated in
the development of an Assay for the purposes of developing other assays, [ * ].


 


(b)                                  During
[ * ], BMS may request in writing
that Exelixis perform high throughput screening of EXEL Compounds in one (1) or
more assays (whether developed by


 


17

















 


BMS or EXEL) that
assess the activity of such compounds with respect to a Selected Target chosen
by BMS and subsequently conduct lead optimization of EXEL Compounds until
Exelixis identifies an analog or derivative of such compound that qualifies as
a Lead Compound (it being understood that [ *
] shall not [ * ] the
foregoing).  Such request shall specify
the assay(s) to be used, whether the entire Exelixis library or certain subsets
thereof should be screened, and the criteria (including without limitation, if
appropriate, a range of variances that is mutually agreed upon by the Parties)
that an EXEL Compound must meet in order to be considered either a Lead
Compound or a Back-up Compound for such Lead Compound.  If Exelixis wishes to perform such work, it
shall present BMS with a proposed detailed work plan (including specific
deliverables, timetable and date on which Exelixis anticipates commencing work,
and acceptance procedures) and budget for such work plan (including payment
schedules) within [ * ] of BMS’
request.  If BMS wishes Exelixis to
perform such work pursuant to such budget, it shall notify Exelixis within [ * ] of receipt of such budget.  The final detailed work plan and budget for
such work plan (the “Work Plan”) shall be signed by both Parties before any
work is undertaken.  Exelixis shall use
good faith Diligent Efforts to complete the work set forth in the Work Plan;
provided, that any payment that is conditioned on the performance or delivery
of certain deliverables and/or performance by a certain date must be met before
payment will be owed, whether or not Exelixis shall have used good faith
Diligent Efforts.  If such work results
in the development of a Lead Compound, Exelixis shall deliver to BMS such Lead
Compounds and all Back-up Compounds for such Lead Compound.  In addition to all payments made by BMS pursuant
to any budget agreed upon in accordance with this Section 3.5(b) (such
payments shall be noncreditable and nonrefundable), BMS shall make the
milestone payment set forth in Sections 7.3(c), (e) and (f) upon occurrence of
the events specified therein and BMS shall make royalty payments in accordance
with Section 7.4.  Exelixis
covenants that, with respect to each BMS Selected Target against which Exelixis
screens its libraries pursuant to this Section 3.5(b), Exelixis will not [ * ].


 


3.6                               Target
Abandonment.


 


(a)                                  A Selected Target will become an Abandoned
Target if any of the following circumstances arise: [ * ].


 


(b)                                  If BMS [ * ].  If Exelixis [ * ].


 


(c)                                  Each Target that becomes an Abandoned Target [ * ].


 


3.7                               Targets
Other Than Selected Targets.  Except
as set forth in Section 3.3(k) or 3.3(l), Exelixis has no obligations to
BMS with respect to and grants no licenses to BMS with respect to [ * ]. 
All such targets shall not be subject to any terms of this Amended and
Restated Agreement except for Section 5.2(a)(ii) (with respect to [ * ]), Section 3.1 (with respect to [ * ]) and Section 3.3(h) (with
respect to [ * ]).


 


3.8                               Records.  Each Party shall maintain complete and
accurate records of all scientific and development work conducted on its Selected
Targets, Collaboration Compounds and Products and all results, data and
developments made pursuant to its research and development efforts under this
Amended and Restated Agreement.  Such
records shall be


 


18

















 


complete and
accurate and shall fully and properly reflect all work done and results
achieved in sufficient detail and in good scientific manner appropriate for
patent and regulatory purposes.


 


3.9                               Reports.  Every [ *
], each Party will submit to the other Party a written progress
report summarizing the research and development work performed by such Party on
its Selected Targets.


 


3.10                        Expenses.  Except as set forth in Sections 3.5 and 7.2,
[ * ] shall bear [ * ] associated with performing the research,
development and commercialization described in Articles 2 and 3.


 


3.11                        Target Status.  The Parties agree that Exhibit 3.11 provides
the status, as of the Amendment Effective Date, of [ * ].


 


4.                                      ADDITIONAL
CONSIDERATION


 


4.1                               Stock
Purchase Agreement.  The Parties
acknowledge that BMS made an equity investment in Exelixis equal to a total of
twenty million dollars ($20,000,000) in accordance with the terms set forth in
the Stock Purchase Agreement between the Parties of even date with the
Effective Date.


 


4.2                               Rebeccamycin
Analog License Agreement.  BMS shall
grant Exelixis an exclusive license to the rebeccamycin analog (“Rebeccamycin
Analog”) known as BMY-027557 (with the CAS Identification No.  CAS-119673-08-4) in accordance with the
terms set forth in the License Agreement between the Parties of even date with
the Effective Date.


 


5.                                      LICENSES
AND RELATED RIGHTS


 


5.1                               Licenses
to BMS.


 


(a)                                  EXEL
Know-How and EXEL Patents.  Subject
to the terms of this Amended and Restated Agreement (including without limitation
Section 5.2 and Article 6):


 


(i)                                    Research.  Exelixis hereby grants BMS a non-exclusive,
worldwide, royalty-free license (with the right to sublicense to its
Affiliates, but without the right to sublicense to Third Parties except with
prior written consent of Exelixis), under any EXEL Know-How and EXEL Patents
solely (A) to perform the research tasks assigned to it pursuant to Sections
2.10(c), 2.11, 2.20 and 3.1(a), and (B) to perform research, during [ * ] and in accordance with Sections
2.10(d) and 2.11, upon mammalian orthologues of certain Model System Targets.


 


(ii)                                BMS
Selected Targets.  Exelixis hereby
grants BMS an exclusive, worldwide, royalty-bearing (solely to the extent
provided in Section 7.4) license (with the right to sublicense), under any
EXEL Know-How and EXEL Patents covering the composition, manufacture, or use of
one (1) or more BMS Selected Targets, to make and use each such BMS Selected
Target (A) to perform research within the Research Field upon each such BMS
Selected Target, including using such BMS Selected Target to search for
Collaboration Compounds, (B) to develop, and make or have made for use in the
Development Field, BMS Products comprising


 


19

















 


or incorporating
Collaboration Compounds, (C) to develop, following the commencement of a
clinical trial of a BMS Product in the Development Field, such BMS Product for
any human indication, and (D) to make, have made, use, import, sell, offer to
sell and have sold BMS Products.


 


(iii)                            Assays.  Exelixis hereby grants BMS an exclusive,
worldwide, royalty-bearing (solely to the extent provided in Section 7.4)
license (with the right to sublicense), under any EXEL Know-How and EXEL
Patents covering the composition or use of one (1) or more Assays, (A) to make
and have made such Assay, (B) to use each such Assay to search for, make and
have made (1) Collaboration Compounds with activity against the BMS Selected
Target for which such Assay was developed, and (2) compounds that lack activity
against the BMS Selected Target for which such Assay was developed, (C) to
develop, and make or have made, for use in the Development Field (and in any
defined field licensed by BMS under Section 5.2(b)(iii)), BMS
Collaboration Products, and (D) to develop, following the commencement of a
clinical trial of a BMS Collaboration Product in the Development Field, such
BMS Collaboration Product for any human indication.  Such license shall convert to a non-exclusive license, on an
Assay-by-Assay basis, on the earlier of (x) the date that is [ * ] after the end of the Research Term,
or (y) the BMS Selected Target relating to such Assay becomes an Abandoned
Target and is selected by Exelixis as an EXEL Selected Target.


 


(iv)                               Lead
Compounds/Back-Up Compounds.  Exelixis
hereby grants BMS a worldwide, royalty-bearing (solely to the extent provided
in Section 7.4) license (with the right to sublicense), under any EXEL
Know-How and EXEL Patents during the term of this Amended and Restated
Agreement covering the composition, manufacture, or use of a Lead Compound
delivered to BMS pursuant to Section 3.5(b) or a Back-up Compound for such
Lead Compound, (A) to make derivatives of such Lead Compounds and Back-up
Compounds, (B) to research, develop, and make or have made for use in the
Development Field, BMS Collaboration Products comprising or incorporating such
a Lead Compound or Back-up Compound or derivative thereof, (C) to develop,
following commencement of a clinical trial of such a BMS Collaboration Product
in the Development Field, such BMS Collaboration Product for any human
indication, and (D) to make, have made, use, import, sell, offer to sell and
have sold such BMS Collaboration Products.  The
foregoing license shall be (x) exclusive with respect to Lead Compound and
Back-up Compounds delivered to BMS pursuant to Section 3.5(b) and BMS
Collaboration Products containing such Lead Compounds or Back-up Compounds and
(y) non-exclusive with respect to derivatives of Lead Compounds and Back-up
Compounds delivered to BMS pursuant to Section 3.5(b) and BMS
Collaboration Products containing derivatives of such Lead Compounds and
Back-up Compounds.  [ * ].


 


(v)                                   Pharmacogenomic
Uses.  Exelixis hereby grants BMS a
non-exclusive, worldwide, royalty-bearing (solely to the extent provided in
Section 7.4) license (with the right to sublicense), under the EXEL
Know-How and EXEL Patents covering the composition, manufacture or use of any
Selected Target of either Party, to use such Selected Target in the research,
development, manufacture, use, import, sale and offer for sale of a
Pharmacogenomic Product for use (A) in connection with the research,
development, manufacture, use, import, sale and offer for sale, for any
indication, of a (i) BMS Product or (ii) a product that modulates the same
Selected Target as such BMS Product via substantially the same molecular
mechanism of action (a “Target Product”), and (B) in the labeling, promotion,
and


 


20

















 


registration of
any BMS Product or Target Product for any indication.  Such license for a particular Pharmacogenomic Product shall be
sublicensable solely (x) together with a sublicense under
Section 5.1(a)(ii) with respect to a related BMS Product or (y) by BMS or
its sublicensee, for the purpose of developing or commercializing a
Pharmacogenomic Product for use in conjunction with a related BMS Product that
BMS or its sublicensee is developing or commercializing.  Provided that a sublicense is granted in accordance
with the restrictions set forth in the previous sentence and such sublicense
does not further limit the scope of the sublicensee’s practice of the EXEL
Know-How and EXEL Patents, such sublicensee may practice the full extent of the
license set forth in this Section 5.1(a)(v), including making, providing,
and selling Pharmacogenomic Products for use with Target Products.  [ * ].


 


(vi)                               Negative
Screening Using EXEL Targets. 
Exelixis hereby grants to BMS a non-exclusive, worldwide, non-royalty
bearing license (without the right to sublicense except to its Affiliates)
under any EXEL Patents and EXEL Know-How covering the composition, manufacture,
or use of an EXEL Selected Target, to use such EXEL Selected Target solely in
secondary screening assays developed by or for BMS to identify, research and
develop Collaboration Compounds and BMS Products that lack the ability to
inhibit, activate or otherwise modulate the activity of such EXEL Selected
Target.  The foregoing license does not
include the right of BMS to use any assays developed by or on behalf of
Exelixis with respect to EXEL Selected Targets, other than [ * ].


 


(vii)                           Exelixis
Validation Protocols and Reagents. 
Exelixis hereby grants to BMS a non-exclusive, worldwide, royalty-free
license (without the right to sublicense except to its Affiliates) under the
EXEL Know-How and EXEL Patents relating to (A) the Exelixis validation
protocols and reagents listed on Exhibit 5.1(a)(vii) (as updated from time to
time by the JSC) and (B) all validation protocols and reagents that are
developed by Exelixis in the course of performing its duties under the Research
Plan, to use same for all purposes.


 


(viii)                       Improvements
to BMS Validation Protocols and Reagents. 
Exelixis hereby grants to BMS a non-exclusive, worldwide, royalty-free
license (with the right to sublicense) under the EXEL Know-How and EXEL Patents
to use for all purposes, all improvements to the validation protocols and
reagents licensed by BMS under Section 5.3(d) that incorporate or contain
any of such validation protocols and reagents licensed by BMS.


 


(b)                                  Target
Inventions.


 


(i)                                    Subject
to the terms of this Amended and Restated Agreement, Exelixis hereby grants BMS
an exclusive, worldwide, royalty-free license (with the right to sublicense),
under the Target Inventions invented solely by BMS and all Patents Controlled
by Exelixis that claim such Target Inventions, to use such Target Inventions
for all purposes other than those for which Exelixis has exclusive rights
pursuant to Section 5.3.


 


(ii)                                Subject
to the terms of this Amended and Restated Agreement, Exelixis hereby grants BMS
a worldwide, royalty-free license (with the right to sublicense), under the
Target Inventions invented jointly by BMS and Exelixis and all Patents
Controlled by Exelixis that claim such Target Inventions, to use, without any
accounting or obligation to, or consent required of, Exelixis, such Target
Inventions for all purposes other than those for which


 


21

















 


Exelixis has
exclusive rights pursuant to Section 5.3. 
The foregoing license is exclusive, with respect to BMS Selected
Targets, for those purposes for which BMS has exclusive rights pursuant to
Section 5.1(a)(ii);  such license
is co-exclusive for all other permitted purposes.


 


(iii)                            The
license rights to a Target Invention (or Patent obtained thereon) granted under
5.1(b)(i) and (b)(ii) above shall last until the expiration of the last to
expire Patent claiming a Target Invention or, if no Patent is obtained thereon,
for the useful life thereof.


 


5.2                               License
Limitations and Option.


 


(a)                                  License
Limitations.


 


(i)                                    BMS
hereby covenants that it will not use any EXEL Know-How (to the extent the same
Remains Confidential to Exelixis at the time of use by BMS), Target Invention
or EXEL Patents for a purpose other than that expressly permitted in
Section 5.1.  [ * ].


 


(ii)                                Subject
to Section 6.2, for each BMS Selected Target, Exelixis hereby covenants [ * ].


 


(iii)                            For
purposes of Sections 5.1(a)(ii), 5.1(a)(v) and 5.1(a)(vi), EXEL Know-How shall
be limited to Information developed by or on behalf of Exelixis prior to the
Effective Date or in the performance of the Collaboration and prior to the
first selection by either Party of such Target as a Selected Target, and the
EXEL Patents shall be limited to those that cover Inventions made by or on
behalf of Exelixis prior to the Effective Date or in the performance of the
Collaboration and prior to the first selection by either Party of such Target
as a Selected Target.  For purposes of
Section 5.1(a)(i) and 5.1(a)(vii)(B), the EXEL Know-How shall be limited
to Information developed by or on behalf of Exelixis prior to the Effective
Date or in the performance of the Collaboration and prior to the end of the
Research Term, and the EXEL Patents shall be limited to those that cover
Inventions made by or on behalf of Exelixis prior to the Effective Date or in
the performance of the Collaboration and prior to the end of the Research
Term.  For purposes of
Section 5.1(a)(iii), the EXEL Know-How shall be limited to that Information
developed by Exelixis in the performance of the Collaboration and prior to
delivery of the Assay to BMS, and the EXEL Patents shall be limited to those
that cover Inventions made in the performance of the Collaboration and prior to
the delivery of the Assay to BMS.  With
respect solely to the derivatives non-exclusively licensed under
Section 5.1(a)(iv), the EXEL Know-How so licensed shall be limited to
Information developed by Exelixis in the performance of the Collaboration and
prior to delivery of the relevant Lead Compound or Back-Up Compound to BMS, and
the EXEL Patents so licensed shall be limited to those that cover Inventions
made in the performance of the Collaboration and prior to the delivery of the
relevant Lead Compound or Back-Up Compound to BMS.  For clarity, the term “Invention” for purposes of this
subsection (iii) shall not be construed to preclude any [ * ].


 


(iv)                               Each
sublicense granted by BMS, pursuant to Section 5.1(a), to a party who is
an Affiliate at the time such license is granted shall terminate immediately
upon such party ceasing to be an Affiliate.


 


22

















 


(b)                                  Option
for Non-exclusive License.


 


(i)                                    [ * ].


 


(ii)                                [ * ].


 


(iii)                            [ * ].


 


(iv)                               [ * ].


 


(v)                                   [ * ].


 


5.3                               Licenses
to Exelixis.  Subject to the terms
of this Amended and Restated Agreement (including without limitation
Section 5.4):


 


(a)                                  Research.  BMS hereby grants Exelixis a non-exclusive,
worldwide, royalty-free license (with the right to sublicense to Affiliates,
but without the right to sublicense to Third Parties except with prior written
consent of BMS) under the BMS Know-How and BMS Patents, solely  (A) to
perform research during the Research Term in accordance with Articles 2 and 3,
and (B) to perform research, during [ * ]
and in accordance with Sections 2.10(d) and 2.11, upon mammalian orthologues of
certain Model System Targets.


 


(b)                                  EXEL
Selected Targets.  BMS hereby grants
Exelixis an exclusive, worldwide, royalty-free license (with the right to
sublicense), under the BMS Know-How and BMS Patents covering the composition,
manufacture, or use of one (1) or more EXEL Selected Targets, to make and use
each such EXEL Selected Targets (A) to perform research within or outside the
Research Field upon each EXEL Selected Target, including using such EXEL
Selected Target to search for Collaboration Compounds, and (B) to research,
develop, make, have made, use, import, sell, offer to sell and have sold, for
use within or outside the Development Field, EXEL Products comprising or incorporating
such Collaboration Compounds.  Such
license shall be subject to a retained right in BMS (sublicensable to its
Affiliates only) to use and practice same for research outside the Research
Field upon such EXEL Selected Target and to make and have made, and to use
same, to develop BMS compounds for use outside the Development Field.


 


(c)                                  Targets.  BMS hereby grants to Exelixis a worldwide,
royalty-free license (with the right to sublicense) under the BMS Know-How and
BMS Patents covering the composition, manufacture, or use of a Target, to make
and use each such Target: [ * ].  Such licenses shall be exclusive for
purposes of subparts (i)-(iii) and non-exclusive for purposes of subpart (iv),
and [ * ].  Such licenses in subparts (i) and (iv), to
the extent they apply to Sole Inventions of BMS, shall be sublicensable to a
Third Party for a given BMS Selected Target only if the Third Party grants or
agrees to grant to Exelixis a worldwide license (with the right to sublicense),
under such Third Party’s know-how and patents covering the composition,
manufacture, or use in oncology of such BMS Selected Target, to make and use
each such BMS Selected Target to research, develop, make, have made, use, sell,
offer to sell, have sold and import, for use within the Development Field,
products containing small molecule modulators of such BMS Selected Target.  The foregoing sublicensing limitation shall
not apply to sublicensing of BMS Know-How and BMS Patents that are not Sole
Inventions of BMS.


 


23

















 


(d)                                  Validation
Protocols and Reagents.


 


(i)                                    BMS
hereby grants to Exelixis a non-exclusive, worldwide, royalty-free license
(without the right to sublicense except to its Affiliates) under the BMS
Know-How and BMS Patents directly relating to: (A) the BMS validation protocols
and reagents listed on Exhibit 5.3(d),  as updated from time to time by the JSC,
and (B) all validation protocols and reagents that are developed by BMS in the
performance of its duties under the Research Plan to use same for all purposes.


 


(ii)                                BMS
hereby grants to Exelixis a non-exclusive, worldwide, royalty-free license
(with the right to sublicense) under the BMS Know-How and BMS Patents to use
for all purposes, all improvements to the validation protocols and reagents
licensed by Exelixis under Section 5.1(a)(vii) that incorporate or contain
any of such validation protocols and reagents licensed by Exelixis.


 


(e)                                  Assays.  So long as BMS’ rights under
Section 5.1(a)(iii) remain exclusive, BMS hereby grants Exelixis a
non-exclusive, worldwide royalty-free license (without the right to sublicense
except to its Affiliates), under the EXEL Know-How and EXEL Patents covering
the composition or use of a given Assay solely to use such Assay pursuant to a
Work Plan agreed to by BMS and Exelixis under Section 3.5(b) where
Exelixis will use such Assay to perform high throughput screening to identify
compounds which have or lack activity against the Selected Target for which
such Assay was developed.


 


(f)                                    Negative
Screening Using BMS Targets.  BMS
hereby grants to Exelixis a non-exclusive, worldwide, non-royalty bearing,
license (without the right to sublicense except to its Affiliates) under any
BMS Patents and BMS Know-How covering the composition, manufacture, or use of
an BMS Selected Target, to use such BMS Selected Target solely in secondary
screening assays to identify, research and develop Collaboration Compounds that
lack the ability to inhibit, activate or otherwise modulate the activity of
such BMS Selected Target.  The foregoing
license does not include the right of Exelixis to use any (i) Assays developed
for BMS or (ii) assays developed by or on behalf of BMS with respect to BMS
Selected Targets other than [ * ].


 


(g)                                 Pharmacogenomic
Uses.  BMS hereby grants Exelixis a
non-exclusive, worldwide, royalty-free license (with the right to sublicense),
under the BMS Know-How and BMS Patents covering composition, manufacture, or
use of all the Selected Targets of either Party, to use such Selected Target in
the research, development, manufacture, use, import, sale and offer for sale of
a Pharmacogenomic Product for use (A) in connection with the research,
development, manufacture, use, import, sale and offer for sale, for any
indication, of an (i) EXEL Product or (ii) a Target Product, and (B) in the
labeling, promotion, and registration of any EXEL Product or Target Product for
any indication.  Such license for a
particular Pharmacogenomic Product shall be sublicensable solely (x) together
with a sublicense under Section 5.3(b) with respect to a related EXEL
Product or (y) by Exelixis or its sublicensee, for the purpose of developing or
commercializing a Pharmacogenomic Product for use in conjunction with a related
EXEL Product that Exelixis or its sublicensee is developing or
commercializing.  Provided that a
sublicense is granted in accordance with the restrictions set forth in the
previous sentence and such sublicense does not further limit the scope of the


 


24

















 


sublicensee’s
practice of the BMS Know-How and BMS Patents, such sublicensee may practice the
full extent of the license set forth in this Section 5.3(g), including
making, developing and selling Pharmacogenomic Products for use with Target
Products.  [ * ].


 


5.4                               License
Limitations.


 


(a)                                  For
purposes of Sections 5.3(b), 5.3(c), 5.3(f) and 5.3(g), the BMS Know-How shall
be limited to that Information developed by or on behalf of BMS in the
performance of the Collaboration and prior to the first selection by either
Party of such Target as a Selected Target, and the BMS Patents shall be limited
to those that cover Inventions made by or on behalf of BMS in the performance
of the Collaboration and prior to the first selection by either Party of such
Target as a Selected Target).  For
purposes of Section 5.3(a) and 5.3(d)(i)(B), the BMS Know-How shall be
limited to Information developed by or on behalf of BMS in the performance of
the Collaboration prior to the end of the Research Term, and the BMS Patents
shall be limited to those that cover Inventions made by or on behalf of BMS in
the performance of the Collaboration prior to the end of the Research
Term.  For clarity, the term “Invention”
for purposes of this Section 5.4(a) shall not be construed to preclude [ * ].


 


(b)                                  Exelixis
hereby covenants that it will not use any BMS Know-How (to the extent the same
Remains Confidential to BMS at the time of use by Exelixis) or BMS Patents for
a purpose other than that expressly permitted in Section 5.3.


 


(c)                                  Each
sublicense granted by Exelixis, pursuant to Section 5.3, to a party who is
an Affiliate at the time such license is granted shall terminate immediately
upon such party ceasing to be an Affiliate.


 


5.5                               Rights
of First Negotiation.


 


(a)                                  BMS
Right of First Negotiation.  [ * ].


 


(b)                                  Exelixis
Right of First Negotiation.  [ * ].


 


(c)                                  [ * ].


 


(d)                                  [ * ].


 


(e)                                  [ * ].


 


6.                                      EXCLUSIVITY


 


6.1                               Exelixis.  During [ *
] (unless this Amended and Restated Agreement is terminated sooner
by Exelixis for material breach by BMS), Exelixis shall not [ * ]. 
Those EXEL Products arising from Exelixis’ sole work (without any
involvement of a Third Party collaborator or sublicensee) on EXEL Selected
Targets shall be subject to the right of first negotiation set forth in
Section 5.5(a).  Those EXEL
Products that are Controlled by Exelixis shall be subject to the right of first
negotiation set forth in Section 5.5(a) and the foreign right of first
negotiation in Section 5.5(d).


 


25

















 


6.2                               Independent
Research.


 


(a)                                  Exelixis
shall use Diligent Efforts to maintain exclusivity with respect to the
individual elements of data and Inventions that Exelixis generates, delivers
and licenses to BMS under this Amended and Restated Agreement.  Notwithstanding the foregoing, the
exclusivity of any licenses granted to BMS under Sections 5.1(a)(ii) and
5.1(a)(iv) shall be subject to rights granted by Exelixis to Third Parties or
retained by Exelixis for internal use, as a result of research that performed
by Exelixis under the following circumstances:


 


(i)                                    Subject
to Section 2.12(d), Exelixis may be engaged by a Third Party to identify
the target of a compound.  Exelixis may
reveal the identity of the target to the Third Party and grant the Third Party
a license to such target under intellectual property rights Controlled by
Exelixis, and the Third Party may be entitled to use the target and research
results pertaining thereto for any purpose (the scope of the license depending
on the terms of Exelixis’ agreement with the Third Party under which it
performed such work).  If the target is
an Eligible Target, a PreDesignated Target or Designated Target on which the
Parties are performing Tier 1 or Tier 2 Validation work, a Designated Validated
Target or a BMS Selected Target, Exelixis will inform the Third Party that, on
account of its exclusivity obligations to another party, Exelixis is unable to
perform further work on this target.


 


(ii)                                Exelixis
may be engaged by a Third Party to identify targets in a molecular field (the
“Other Field”) other than the Research Field. 
Such research may result in the identification of targets that are
Eligible Targets, Designated Validated Targets or Selected Targets.  Exelixis may study the role of such targets
in the Other Field and may grant such Third Party licenses to use such targets
in appropriate indications, which may overlap with the Development Field.  [ * ].


 


(iii)                            Exelixis
may be engaged by a Third Party to identify or perform chemistry work upon
compounds that modulate a target that, at the time Exelixis enters into the
agreement with the Third Party that governs such work, is not a BMS Selected
Target.  Exelixis may continue such work
even if the target subsequently becomes a BMS Selected Target and Exelixis may
grant such Third Party a license to use compounds arising from such work for
any purpose, including indications in the Development Field.


 


(b)                                  Subject
to Section 6.1, Exelixis may use, in research described in
Section 6.2(a), the following Information generated pursuant to the
Collaboration, provided that Exelixis does not initiate such research using: [ * ]. 
Exelixis may petition BMS at any time during the term of this Amended
and Restated Agreement to add certain Information generated pursuant to the
Collaboration to the foregoing list. 
Such addition shall only be made upon the mutual written agreement of
the Parties.  For the purposes of this
Section 6.2(b), the Parties acknowledge and agree that Exelixis’ use of
any Information specified in this Section 6.2(b) shall not be considered
use in “initiating” research if, prior to the use of such Information, [ * ]. 
The foregoing shall not be interpreted as a limitation on Exelixis’
right to use Information generated pursuant to the Collaboration in a manner
that does not conflict with Section 6.1 and, to the extent that such
Information is generated by BMS in the course of the Collaboration, the
licenses granted to Exelixis in Section 5.3.


 


26

















 


(c)                                  Upon
request of the JSC, Exelixis shall consult with the JSC from time to time
regarding its procedures for seeking to avoid overlapping research activities
on behalf of multiple Third Parties.


 


6.3                               Other
Research.


 


(a)                                  Subject
to Sections 5.1 and 5.5(a)(iv), the Parties understand and agree that Exelixis
may use Information [ * ].  Since the foregoing is not independent
research (as described in Section 6.2), Exelixis may initiate such
research using such Information.


 


(b)                                  Exelixis
shall disclose to BMS all target identification and validation Information [ * ]. 
Such Information is included in the license granted to BMS in
Section 5.1(a)(ii) and BMS may use such Information in accordance with
such license.  Similarly, Exelixis may
disclose to [ * ] the target
identification and validation Information [ *
].


 


7.                                      COMPENSATION


 


7.1                               License
Fee.  BMS shall pay Exelixis a
license fee of five million dollars ($5,000,000) [ * ].  BMS shall pay
Exelixis a license fee of three million dollars ($3,000,000) [ * ]. 
All license fee payments made by BMS to Exelixis pursuant to this
Section 7.1 shall be noncreditable and nonrefundable.


 


7.2                               Research
Support.


 


(a)                                  Initial
Research Term.  On the Effective
Date, BMS will make a research support payment to Exelixis equal to [ * ]. 
On or  prior to the commencement of each [ * ] during the Initial Research Term, BMS will make a
research support payment to Exelixis equal to [
* ]; provided that, [ * ].  All research support payments made by BMS to
Exelixis hereunder shall be noncreditable and nonrefundable.


 


(b)                                  Subsequent
Research Term.  To partially fund
Exelixis’ research efforts during the Subsequent Research Term, BMS shall,
subject to early termination of the Subsequent Research Term by BMS pursuant to
Section 2.6(a) or by either Party pursuant to Section 10.2 (in which
event [ * ] following the
termination effective date), make research support payments to Exelixis
totaling [ * ] as follows:  [ *
].  All research
support payments made by BMS to Exelixis hereunder shall be noncreditable and
nonrefundable.


 


7.3                               Milestone
Payments.  All milestone payments
made by BMS to Exelixis hereunder shall be noncreditable and
nonrefundable.  Subject to the terms of
this Amended and Restated Agreement:


 


(a)                                  Selected
Targets.  BMS shall make a milestone
payment to Exelixis of [ * ] after
BMS’ selection, pursuant to Section 3.3 or 5.5(e), of (i) the sixth BMS
Selected ET and (ii) each subsequent sixth BMS Selected ET (wherein the
counting of BMS Selected ETs restarts at one after each group of six).  Upon the first JSC meeting after the end of
the Initial Research Term, BMS shall make a milestone payment to Exelixis equal
to [ * ].


 


27

















 


(b)                                  Assay
Development.  For each Assay, BMS
shall make a milestone payment to Exelixis of [
* ] after BMS’ acceptance of such Assay pursuant to
Section 3.5(a).


 


(c)                                  PTP.  For each approval by the BMS Lead Discovery
Operating Committee or its successor of a PTP for a BMS Selected ET, BMS shall
make a milestone payment to Exelixis of [ * ]
after such approval.


 


(d)                                  Milestone
Payment Dates [ * ].


 


(i)                                    Each
milestone payment set forth in subsections (a) and (c) of this Section 7.3
shall accrue at the time of the specified event and shall be paid within [ * ] after such event (the “Payment Due
Date”) [ * ].


 


(ii)                                [ * ].


 


(iii)                            [ * ].


 


(iv)                               [ * ].


 


(e)                                  Development
of Lead Compound.  For each Lead
Compound developed by Exelixis pursuant to Section 3.5(b), BMS shall make
a milestone payment to Exelixis of [ * ]
after BMS’ acceptance of such Lead Compound.


 


(f)                                    BMS
ET Products.  For each BMS ET
Product, BMS shall make the milestone payments set forth below to Exelixis
within [ * ] after the achievement
of each of the following events, subject to Section 7.3(g):


 


(i)                                    [ * ] upon first administration of
such BMS ET Product in a Phase I Clinical Trial;


 


(ii)                                [ * ] upon first administration of
such BMS ET Product in a Phase II Clinical Trial;


 


(iii)                            [ * ] upon first administration of
such BMS ET Product in a Phase III Clinical Trial;


 


(iv)                               [ * ] upon first acceptance of an
NDA filing for such BMS ET Product in a Major Market; and


 


(v)                                   [ * ] upon first receipt of
Regulatory Approval for such BMS ET Product in a Major Market.


 


Each milestone payment
set forth in this Section 7.3(f) will be paid only once with respect to a
given BMS ET Product, regardless of the number of indications sought or
approved for such BMS ET Product.


 


(g)                                 Adjustments
to Product Milestones.  If the NDA
filing described in Section 7.3(f)(iv) and/or the Regulatory Approval
described in Section 7.3(f)(v) for a particular


 


28

















 


BMS ET Product is
for [ * ], then the amounts set
forth in Section 7.3(f)(iv) and Section 7.3(f)(v) shall be [ * ].


 


(h)                                 Milestone
Payments for Secondary Products.  Subject
to Section 5.2(b)(iii), for each Secondary Product that is in development
by BMS (or its Affiliate or sublicensee), BMS shall only be obliged to make to
Exelixis any applicable milestone payments set forth in Section 7.3(f) or
7.3(p) that were not made to Exelixis with respect to the Parent Product of
such Secondary Product.  However, if the
Parent Product (as defined herein), with respect to a particular Secondary
Product, achieves Regulatory Approval, and BMS (or its Affiliate or
sublicensee) continues thereafter to conduct development of such Secondary
Product, then such Secondary Product shall thereafter be deemed a Second
Generation Product, for which milestone payments shall be owed as provided in
Section 7.3(i).  For purposes of
this subsection 7.3(h), a “Secondary Product” means, with respect to a BMS
Product containing a particular Collaboration Compound (the “Parent Product”),
any other BMS Product containing a different Collaboration Compound or Back-up
Compound, respectively, that is intended to modulate the same Selected Target
as the Collaboration Compound in such Parent 
Product, and that is developed by or on behalf of BMS or its Affiliates
or sublicensee as a potential replacement for the Parent Product if the
development of the Parent Product does not result in Regulatory Approval for
the Parent Product.  For clarity, it is
understood that the term “Secondary Product” shall not include new
formulations, presentations, excipients, salts, or modes of delivery of the
Collaboration Compound contained in the Parent Product.


 


(i)                                    Second
Generation Products.  For each
Second Generation Product that is developed by BMS (or its Affiliate or
sublicensee), BMS shall not be obliged to make any milestone payments to
Exelixis under Section 7.3(f) or 7.3(p) unless and until the first
Regulatory Approval of such Second Generation Product in any Major Market.  Upon any such Regulatory Approval of the
Second Generation Product, BMS shall, subject to Section 7.3(g) hereof,
pay to Exelixis the sum of all milestone payments owed under
Section 7.3(f) or 7.3(p) for milestone events achieved by such Second
Generation Product, within [ * ]
of such Regulatory Approval, that, in the absence of this Section 7.3(i),
BMS would have been obliged to make to Exelixis prior to or upon such first
Regulatory Approval of such Second Generation Product (and without interest on
the deferred milestone payments); provided, however, that if the Original BMS
Product is no longer being marketed, due to safety problems, at the time the
Second Generation Product receives such Regulatory Approval in any such Major
Market, then such milestones need not be paid. 
For purposes of this Section 7.3, a “Second Generation Product
means, with respect to a particular BMS Product that has achieved Regulatory
Approval in a Major Market (the “Original BMS Product”), any BMS Product
containing a Collaboration Compound that (i) is not the Collaboration Compound
in the Original BMS Product, and (ii) modulates the same BMS Selected Target as
the Collaboration Compound in such Original BMS Product.  For clarity, it is understood that “Second
Generation Product” shall not include new formulations, presentations,
excipients, salts, or modes of delivery of the active ingredient contained in
the Original BMS Product.


 


(j)                                    Bypassed
Milestone Payments.   Subject
to Section 7.3(h), if an event which triggers a milestone payment set
forth in Section 7.3(f) or 7.3(p) occurs, with respect to a particular
Product, at a time prior to payment, with respect to such Product, of any of
the previous milestone payments set forth in Section 7.3(f) or 7.3(p), as
applicable, then BMS shall


 


29

















 


pay Exelixis
within [ * ] of such event both
the milestone payment triggered by such event and all unpaid previous milestone
payments.


 


(k)                                Hybrid
BMS Selected Targets.  For Hybrid
BMS Selected Targets, the milestone payments under subsections (b)-(j) of this
Section 7.3 shall only be paid with respect to those compounds that
modulate the Hybrid BMS Selected Target where the clinical trial, regulatory
filing or regulatory approval is for an indication in oncology or a defined
field for which BMS took a license from Exelixis pursuant to
Section 5.2(b).


 


(l)                                    Designation
of Designated Targets.  BMS shall
make a milestone payment to Exelixis of [ * ]
after the designation, pursuant to Section 2.20(c), of [ * ].


 


(m)                              Selection
of BMS Selected DVTs.  BMS shall
make a milestone payment to Exelixis of [ * ]
for each BMS Selected DVT within [ * ]
after BMS’ selection of such BMS Selected DVT pursuant to Section 3.3(g)
or 3.3(h), provided,
however, that BMS need not make this milestone payment to Exelixis
with respect to [ * ] that BMS
selects as BMS Selected DVTs; and provided, further, that [ * ] shall not, [ * ].  Any [ * ] pursuant to the preceding sentence
shall be [ * ], provided, that any
and all [ * ].


 


(n)                                 DP2
Approval.  For each DP2 Approval for
a BMS DVT Product, BMS shall make a milestone payment to Exelixis of [ * ] after such approval, provided
however, that BMS need not make this milestone payment with respect
to a particular BMS DVT Product if, at the time of its DP2 Approval, BMS has
already made a milestone payment pursuant to this Section 7.3(n) with
respect to a different BMS DVT Product that is directed to the same BMS
Selected DVT as such BMS DVT Product.


 


(o)                                  DP3
Approval.  For each DP3 Approval for
a BMS DVT Product, BMS shall make a milestone payment to Exelixis of [ * ] after such approval, provided
however, that BMS need not make this milestone payment with respect
to a particular BMS DVT Product if, at the time of its DP3 Approval, BMS has
already made a milestone payment pursuant to this Section 7.3(o) with
respect to a different BMS DVT Product that is directed to the same BMS Selected
DVT as such BMS DVT Product.


 


(p)                                  BMS
DVT Products.  For each BMS DVT
Product, BMS shall make the milestone payments set forth below to Exelixis
within [ * ] after the achievement
of each of the following events:


 


(i)                                    [ * ] upon first administration of
such BMS DVT Product in a Phase I Clinical Trial;


 


(ii)                                [ * ] upon first administration of
such BMS DVT Product in a Phase II Clinical Trial;


 


(iii)                            [ * ] upon first administration of
such BMS DVT Product in a Phase III Clinical Trial;


 


(iv)                               [ * ] upon first acceptance of an
NDA filing for such BMS DVT Product in a Major Market; and


 


30

















 


(v)                                   [ * ] upon first receipt of
Regulatory Approval for such BMS DVT Product in a Major Market.


 


                                                Each
milestone payment set forth in this Section 7.3(p) will be paid only once
with respect to a given BMS DVT Product, regardless of the number of
indications sought or approved for such BMS DVT Product.


 


If the NDA filing
described in Section 7.3(p)(iv) and/or the Regulatory Approval described
in Section 7.3(p)(v) for a particular BMS DVT Product is for [ * ], then the amounts set forth in
Section 7.3(p)(iv) and Section 7.3(p)(v) shall be [ * ].


 


(q)                                  Milestone
Payment Dates [ * ].


 


(i)                                    Each
milestone payment set forth in subsections (a), (c), (l), (m), (n) and (o) of
this Section 7.3 shall accrue at the time of the specified event and shall
be paid within [ * ] after such
event (the “Payment Due Date”) [ * ].


 


(ii)                                [ * ].


 


(iii)                            [ * ].


 


(iv)                               [ * ].


 


(v)                                   [ * ].


 


7.4                               Royalty
Payments.  BMS shall pay Exelixis
royalties on Net Sales of BMS Products at the royalty rates stated below.  All royalty payments made by BMS to Exelixis
hereunder shall be noncreditable and nonrefundable, except in the event that an
audit confirms that BMS had overpaid royalties to Exelixis, in which case such
overpayment will be credited against future royalties due to Exelixis, or
refunded to BMS after the end of the royalty term.


 


(a)                                  BMS
Sole Products.  BMS shall pay
royalties to Exelixis at the rate of [ * ]
of Net Sales of each BMS Sole Product.


 


(b)                                  BMS
Collaboration Products.


 


(i)                                    For
each BMS Collaboration Product that contains a Collaboration Compound with
activity against a BMS Selected Target for which Exelixis developed an Assay
pursuant to Section 3.5(a) but did not deliver a Lead Compound pursuant to
Section 3.5(b), BMS shall pay royalties to Exelixis at the rate of [ * ] of Net Sales of such BMS
Collaboration Product.


 


(ii)                                For
each BMS Collaboration Product for which Exelixis delivered, pursuant to
Section 3.5(b), a Lead Compound or Back-up Compound that (A) is the
Collaboration Compound contained in such product, (B) is an Analogue of the
Collaboration Compound contained in such product or (C) was used in the
discovery or development of such Collaboration Compound, BMS will pay royalties
to Exelixis at the rate of [ * ]
of Net Sales of such BMS Collaboration Product.


 


31

















 


(c)                                  Pharmacogenomic
Products.  BMS shall pay royalties
to Exelixis at the rate of [ * ]
of Net Sales of each Pharmacogenomic Product.


 


7.5                               Royalty
Adjustments.


 


(a)                                  Subject
to Section 7.5(e), BMS may deduct from the royalties it would otherwise
owe pursuant to Section 7.4 for a particular BMS Product, [ * ]. 
BMS shall limit its deductions of Third Party royalty payments with
respect to Patents that claim the use of a BMS Selected Target in oncology [ * ], to payments made on account of sales
reasonably attributable to use in such fields.


 


(b)                                  Subject
to Section 7.5(e), BMS may deduct, from the royalties it would otherwise
owe pursuant to Section 7.4(b)(ii) for a particular BMS Collaboration
Product containing a Lead Compound or Back-up Compound provided by Exelixis
pursuant to Section 3.5(b), [ * ].  BMS shall limit its deductions of Third
Party royalty payments with respect to Patents that claim the use of a Lead
Compound or Back-up Compound in oncology [ *
], to payments made on account of sales reasonably attributable to
use in such fields.


 


(c)                                  Subject
to Section 7.5(e), BMS may reduce the applicable royalty rate set forth in
Section 7.4 by [ * ].


 


(d)                                  Subject
to Section 7.5(e), BMS may reduce the applicable royalty rate set forth in
Section 7.4 by [ * ].


 


(e)                                  Regardless
of the number of royalty deductions or royalty rate reductions set forth in
this Section 7.5 that may apply to a particular BMS Product, the minimum
royalty rate paid by BMS pursuant to this Amended and Restated Agreement shall
be [ * ].


 


(f)                                    For
each BMS Product with activity against a Hybrid BMS Selected Target, the
royalty payments under Section 7.4 (and any deductions or adjustments
thereto permitted under this Section 7.5) shall be based solely on Net
Sales of such product in oncology [ * ].  Prior to the first commercial sale of a
particular BMS Product with activity against a Hybrid BMS Selected Target, the
Parties shall agree in writing upon the methodology to be used to allocate the
Net Sales of such product between (i) the Net Sales attributable to use in
oncology and all defined fields for which BMS took a license from Exelixis
pursuant to Section 5.2(b) and (ii) the Net Sales attributable to use in
the principle indication(s) specified in the DP1 Approval for such Hybrid BMS
Selected Target.


 


7.6                               Quarterly
Payments.  All royalties due under
Section 7.4 shall be paid quarterly, on a country-by-country basis, within
[ * ] of the end of the relevant
quarter for which royalties are due.


 


7.7                               Term
of Royalties.  Exelixis’ right to
receive royalties under Section 7.4 shall expire on a country-by-country
basis upon the later of (i) [ * ]
from the first commercial sale of such BMS Product in such country, or (ii)
expiration of the last to expire patent or patent application in such country
Controlled by Exelixis or BMS claiming the BMS Product or Collaboration Compound
contained therein or the manufacture, use or sale of such BMS Product or
Collaboration Compound.


 


32

















 


7.8                               Royalty
Payment Reports.  Each royalty
payment shall be accompanied by a statement stating the number, description,
and aggregate Net Sales, by country, of each Product sold during the relevant
calendar quarter.


 


7.9                               Payment
Method.  All payments due under this
Amended and Restated Agreement to Exelixis shall be made by bank wire transfer
in immediately available funds to an account designated by Exelixis.  All payments hereunder shall be made in U.S.
dollars.


 


7.10                        Taxes.  Exelixis shall pay any and all taxes levied
on account of all payments it receives under this Amended and Restated
Agreement.  If laws or regulations
require that taxes be withheld, BMS will (i) deduct those taxes from the
remittable payment, (ii) pay the taxes to the proper taxing authority, and
(iii) send evidence of the obligation together with proof of tax payment to
Exelixis within [ * ] following
that tax payment.


 


7.11                        Blocked
Currency.  In each country where the
local currency is blocked and cannot be removed from the country, royalties
accrued in that country shall be paid to Exelixis in the country in local
currency by deposit in a local bank designated by Exelixis, unless the Parties
otherwise agree.


 


7.12                        Sublicenses.  In the event BMS grants licenses or
sublicenses to others to sell Products which are subject to royalties under
Section 7.4, such licenses or sublicenses shall include an obligation for
the licensee or sublicensee to account for and report its sales of Products on
the same basis as if such sales were Net Sales by BMS, and BMS shall pay, or
shall ensure that sublicensee shall pay, to Exelixis, with respect to such
sales, royalties as if such sales of the licensee or sublicensee were Net Sales
of BMS.


 


7.13                        Foreign
Exchange.  Conversion of sales
recorded in local currencies to U.S. dollars will be performed in a manner
consistent with BMS’ normal practices used to prepare its audited financial
statements for internal and external reporting purposes, which uses a widely
accepted source of published exchange rates.


 


7.14                        Records;
Inspection.  BMS shall keep
complete, true and accurate books of account and records for the purpose of
determining the payments to be made under this Amended and Restated
Agreement.  Such books and records shall
be kept for at least [ * ]
following the end of the calendar quarter to which they pertain.  Such records will open for inspection during
such [ * ] period by independent
accountants, solely for the purpose of verifying payment statements
hereunder.  Such inspections shall be
made no more than once each calendar year, at reasonable time and on reasonable
notice.  Inspections conducted under
this Section 7.14 shall be at the expense of Exelixis, unless a variation
or error producing an increase exceeding [ *
] of the royalty amount stated for any period covered by the
inspection is established in the course of such inspection, whereupon all costs
relating to the inspection for such period and any unpaid amounts (plus
interest) that are discovered will be paid promptly by BMS.


 


7.15                        Interest.  If BMS fails to make any payment due to
Exelixis under this Amended and Restated Agreement, then interest shall accrue
on a daily basis at the greater of a rate equal to [ * ].


 


33

















 


8.                                      INTELLECTUAL
PROPERTY


 


8.1                               Ownership.


 


(a)                                  Inventorship
of all Target Inventions, Sole Inventions and Joint Inventions will be
determined under the patent laws of the United States.


 


(b)                                  Exelixis
shall own the entire right, title and interest in and to any and all Target
Inventions and Patents and other intellectual property rights claiming or
covering or appurtenant to such Target Inventions.  BMS shall and hereby transfers and assigns to Exelixis any and
all right, title and interest to all Target Inventions and Patents and other
intellectual property rights claiming or covering or appurtenant to such Target
Inventions.  Once a Patent issues
covering a Target Invention, the Parties patent counsel will discuss [ * ].


 


(c)                                  Each
Party shall own the entire right, title and interest in and to any and all of
its Sole Inventions, and Patents covering such Sole Inventions.  BMS and Exelixis shall each own an undivided
one-half interest in and to any and all Joint Inventions and Patents and other
intellectual property rights claiming or covering or appurtenant to such Joint
Inventions.  BMS and Exelixis as joint
owner each shall have the right to exploit and to grant licenses under such
Joint Inventions (without an accounting or obligation to, or consent required
from, the other Party), unless otherwise specified in this Amended and Restated
Agreement.


 


8.2                               Disclosure.  Each Party shall submit a written report to
the JMT within [ * ] of the end of
each quarter describing any Target Invention, Sole Invention or Joint Invention
arising during the prior quarter in the course of the Collaboration which it
believes may be patentable.  The JMT
shall decide whether to file a patent application for a Joint Invention, as
discussed in Section 8.3(a).


 


8.3                               Patent
Prosecution and Maintenance; Abandonment.


 


(a)                                  The
JMT shall establish the patent strategy for all Joint Inventions arising from
the Collaboration, taking into consideration Exelixis’ good faith obligations
to BMS and Third Parties relating to patent strategy for Targets and Model
System Targets.  [ * ] shall direct the filing, prosecution
(including any interferences, reissue proceedings and reexaminations) and
maintenance of all Patents covering Target Inventions (“Target Patents”).  Each Party shall direct the filing,
prosecution (including any interferences, reissue proceedings and reexaminations)
and maintenance of all Patents covering its Sole Inventions.  The JMT shall supervise, and shall assign,
on a Joint Invention-by-Joint Invention basis, one Party to be responsible for,
the filing, prosecution (including any interferences, reissue proceedings and
reexaminations) and maintenance of all Patents covering such Joint Invention
consistent with such strategy.  The JMT
shall provide each Party with (i) drafts of any new patent application that
covers a Joint Invention prior to filing that application, allowing adequate
time for review and comment by the Party if possible; provided, however, the
JMT shall not be obligated to delay the filing of any patent application; and
(ii) copies of all correspondence from any and all patent offices concerning
patent applications covering Joint Inventions and an opportunity to comment on
any proposed responses, voluntary amendments and submissions of any kind to be
made to any and all such patent offices. 
The Party that, pursuant to this Section 8.3(a), has the right to
direct the


 


34

















 


filing,
prosecution and maintenance of a Patent covering a Sole Invention or Target
Invention shall also have the right to select the in-house or outside counsel
(who shall be reasonably acceptable to the other Party) who will perform the
aforementioned filing, prosecution and maintenance-associated activities.  The Parties shall mutually agree on the
in-house or outside counsel who will perform the filing, prosecution and
maintenance of Joint Inventions.


 


(b)                                  BMS
shall bear [ * ] associated with
the filing, prosecution (including any interferences, reissue proceedings and
reexaminations) and maintenance of Patents covering (1) its Sole Inventions
(other than those exclusively licensed to Exelixis under Section 5.3(b)),
(2) the Sole Inventions of Exelixis that are exclusively licensed to BMS under
any of Sections 5.1(a)(ii)-(iv), (3) the Joint Inventions that are exclusively
licensed to BMS under any of Sections 5.1(a)(ii)-(iv), and (4) the Target
Inventions that are exclusively or co-exclusively licensed to BMS under any of
Sections 5.1(a)(ii)-(iv) or 5.1(b); provided that:


 


(i)                                    if
Exelixis or a Third Party licensee of Exelixis is practicing (A) a particular
Exelixis Sole Invention or Joint Invention outside the scope of any of the
licenses set forth in any of Sections 5.1(a)(ii)-(iv), (B) a particular BMS
Sole Invention inside the scope of the license set forth in
Section 5.3(c), (C) a particular Exelixis Sole Invention inside the scope
of the licenses set forth in Sections 5.1(a)(ii) or 5.1(a)(iv) (where expressly
permitted by this Amended and Restated Agreement), or (D) a particular Target
Invention outside the scope of any of the licenses set forth in any of Sections
5.1(a)(ii)-(iv) or 5.1(b) or within the scope of a co-exclusive license
retained by it under Section 5.1(b)(ii), and such Invention is covered by
a Patent for which BMS would otherwise bear [
* ], then, subject to (b)(ii) below, Exelixis and BMS shall [ * ]; and


 


(ii)                                if
any Target Invention, Sole Invention of Exelixis or Joint Invention covered by
(b) above is part of a patent application or patent that covers other
inventions that are not subject to (b) above and that are not licensed to BMS
under any of Sections 5.1(a)(ii)-(iv) or 5.1(b), then the Parties shall [ * ].


 


(c)                                  Exelixis
and BMS shall [ * ].


 


(d)                                  Exelixis
shall bear [ * ] associated with
the filing, prosecution (including any interferences, reissue proceedings and
reexaminations) and maintenance of Patents covering (1) its Sole Inventions
(other than those exclusively licensed to BMS under any of Sections
5.1(a)(ii)-(iv)), (2) the Sole Inventions of BMS exclusively licensed to
Exelixis under Section 5.3(b), (3) the Joint Inventions exclusively
licensed to Exelixis under Section 5.3(b), and (4) the Target Inventions
(other than those exclusively or co-exclusively licensed to BMS under any of
Sections 5.1(a)(ii)-(iv) or 5.1(b)); provided that:


 


(i)                                    if
BMS or a Third Party licensee of BMS is practicing a particular BMS Sole
Invention or Joint Invention outside the scope of the licenses set forth in
Section 5.3, then Exelixis and such Invention is covered by a Patent for
which Exelixis would otherwise bear [ * ],
then, subject to (d)(ii) below, the Parties shall [ * ]; and


 


(ii)                                if
any Target Invention, Sole Invention of BMS or Joint Invention covered by (d)
above is part of a patent application or patent that covers other inventions
that are


 


35

















 


not subject to (d)
above and that are not licensed to Exelixis under Section 5.3(b), then the
Parties shall [ * ].


 


(e)                                  (i)                                    If
a Party elects not to [ * ], such
Party shall inform the other Party in writing not less than [ * ] before any relevant deadline (or, in
the event of a shorter period in which to respond to a patent office, as soon
as reasonably practicable), and, if the other Party assumes [ * ], then the assuming Party will [ * ].


 


(ii)                                If
a Party is the assignee or owner of a Patent (other than a Joint Patent) that
is licensed to the other Party under any of Sections 5.1(a)(ii)-(iv), 5.1(b),
5.3(b) or 5.3(c), and such owning Party does not wish [ * ], such owning Party shall inform the
other Party in writing not less than [ * ]
before any relevant deadline (or, in the event of a shorter period in which to respond
to a patent office, as soon as reasonably practicable).  If the other Party assumes [ * ], then the assuming Party will [ * ].


 


(iii)                            If
a Party is the licensee of a Patent (other than a Joint Patent) under any of
Sections 5.1(a)(ii)-(iv), 5.1(b), 5.3(b) or 5.3(c), and such Party does not
wish to [ * ], such Party shall
inform the other Party in writing not less than [ * ] before any relevant deadline (or, in the event of a
shorter period in which to respond to a patent office, as soon as reasonably
practicable), and shall [ * ].


 


(f)                                    Each
Party shall provide to the other Party, on a semi-annual basis, a patent report
that includes the serial number, docket number and status of each Patent for
which, pursuant to Section 8.3(a), such Party has the right to direct the
filing, prosecution and maintenance and which covers a Sole Invention, Joint
Invention or Target Invention.  At the
same time, each Party shall provide to the other a reasonably detailed estimate
of [ * ].  The Parties through their patent counsel
will discuss [ * ].


 


8.4                               Enforcement
of Patent Rights.


 


(a)                                  Enforcement
of BMS Sole Patents.


 


(i)                                    Enforcement
by Exelixis.  In the event that
in-house counsel for either Party becomes aware of a suspected infringement of
any Patent claiming a Sole Invention of BMS [
* ], such Party shall notify the other Party promptly, and following
such notification, the Parties shall confer. 
Each Party shall provide the same level of disclosure to its in-house
counsel concerning suspected infringement of a BMS Sole Patent as such Party
would provide with respect to suspected infringement of its own issued Patent
or an exclusively licensed issued Patent claiming a product it is developing or
commercializing independent of this Amended and Restated Agreement.  Subject to the rights of any Third Party
licensees of such Patent, Exelixis shall have the right, but shall not be
obligated, to bring an infringement action or to defend such proceedings at its
own expense, in its own name and entirely under its own direction and
control.  BMS will reasonably assist
Exelixis [ * ] in such actions or
proceedings if so requested, and will lend its name to such actions or
proceedings if requested by Exelixis or required by law, and [ * ]. 
BMS shall have the right to participate and be represented in any such
suit by its own counsel at its own expense. 
No settlement of any such action or defense which restricts the scope,
or


 


36

















 


adversely affects
the enforceability, of a BMS Sole Patent may be entered into by Exelixis
without the prior consent of BMS, which consent shall not be unreasonably
withheld.


 


(ii)                                Enforcement
by BMS.  If Exelixis elects not to
bring any action for infringement or to defend any proceeding described in Section 8.4(a)(i)
and so notifies BMS, then BMS may bring such action or defend such proceeding
at its own expense, in its own name and entirely under its own direction and
control.  Exelixis will reasonably
assist BMS [ * ] in any action or
proceeding being prosecuted or defended by BMS, if so requested by BMS or
required by law, and [ * ].  Exelixis shall have the right to participate
and be represented in any such suit by its own counsel at its own expense.  No settlement of any such action or defense
which restricts the scope, or adversely affects the enforceability, of any such
BMS Sole Patent may be entered into by BMS without the prior consent of
Exelixis, which consent shall not be unreasonably withheld.


 


(b)                                  Enforcement
of Exelixis Sole Patents.


 


(i)                                    Enforcement
by BMS.  In the event that in-house
counsel for either Party becomes aware of a suspected infringement, by a Third
of a Patent claiming a Sole Invention of Exelixis [ * ], such Party shall notify the other Party promptly, and
following such notification, the Parties shall confer.  Each Party shall provide the same level of
disclosure to its in-house counsel concerning suspected infringement of a
Exelixis Sole Patent as such Party would provide with respect to suspected
infringement of its own issued Patent or an exclusively licensed issued Patent
claiming a product it is developing or commercializing independent of this
Amended and Restated Agreement.  Where
such suspected infringement involves such Third Party’s development,
manufacture, use or sale of a small molecule oncology product against such BMS
Selected Target, BMS shall have the right, but shall not be obligated, to bring
an infringement action against any such Third Party or to defend such
proceedings at its own expense, in its own name and entirely under its own
direction and control; provided, that this right shall not apply to utility
patents in a defined field to which BMS exercised an option under
Section 5.2(b).  Exelixis will
reasonably assist BMS [ * ] in
such actions or proceedings if so requested, and will lend its name to such
actions or proceedings if requested by BMS or required by law, and [ * ]. 
Exelixis shall have the right to participate and be represented in any
such suit by its own counsel at its own expense.  No settlement of any such action or defense which restricts the
scope, or adversely affects the enforceability, of any such Exelixis Sole
Patent may be entered into by BMS without the prior consent of Exelixis, which
consent shall not be unreasonably withheld.


 


(ii)                                Enforcement
by Exelixis.  If BMS elects not to
bring any action for infringement or to defend any proceeding described in
Section 8.4(b)(i) and so notifies Exelixis, or if such suspected
infringement of an Exelixis Sole Patent does not involve a Third Party
developing, using, making or selling a small molecule oncology product against
such BMS Selected Target then, Exelixis may bring such action or defend such
proceeding at its own expense, in its own name and entirely under its own
direction and control.  BMS will
reasonably assist Exelixis [ * ]
in any action or proceeding being prosecuted or defended by Exelixis, if so
requested by Exelixis or required by law, and [
* ].  BMS shall have the
right to participate and be represented in any such suit by its own counsel at
its own expense.  No settlement of any
such action or defense which restricts the scope, or adversely affects the
enforceability, with respect to


 


37

















 


small molecules,
of an Exelixis Sole Patent may be entered into by Exelixis without the prior
consent of BMS, which consent shall not be unreasonably withheld.


 


(c)                                  Enforcement
of Target Patents.


 


(i)                                    BMS
Target Patents


 


(1)                                 Enforcement
by BMS.  In the event that in-house
counsel of either Party becomes aware of a suspected infringement of a Patent
claiming a Target Invention [ * ],
such Party shall notify the other Party promptly, and following such
notification, the Parties shall confer. 
Each Party shall provide the same level of disclosure to its in-house
counsel concerning suspected infringement of a BMS Target Patent as such Party
would provide with respect to suspected infringement of its own issued Patent
or an exclusively licensed issued Patent claiming a product it is developing or
commercializing independent of this Amended and Restated Agreement.  Where such suspected infringement involves
such Third Party’s development, manufacture, use or sale of a small molecule
oncology product against such BMS Selected Target, BMS shall have the right,
but shall not be obligated, to bring an infringement action against such Third
Party or to defend such proceedings at its own expense, in its own name and
entirely under its own direction and control. 
Exelixis will reasonably assist BMS [
* ] in such actions or proceedings if so requested, and will lend
its name to such actions or proceedings if requested by BMS or required by law,
and [ * ].  Exelixis shall have the right to participate
and be represented in any such suit by its own counsel at its own expense.  No settlement of any such action or defense
which restricts the scope, or adversely affects the enforceability, of a BMS
Target Patent may be entered into by BMS without the prior consent of Exelixis,
which consent shall not be unreasonably withheld.


 


(2)                                 Enforcement
by Exelixis.  If BMS elects not to
bring any action for infringement or to defend any proceeding described in
Section 8.4(c)(i)(1) and so notifies Exelixis, or if such suspected
infringement of a BMS Target Patent does not involve a Third Party developing,
using, making or selling a small molecule oncology product against such BMS
Selected Target, then Exelixis may bring such action or defend such proceeding
at its own expense, in its own name and entirely under its own direction and control.  BMS will reasonably assist Exelixis [ * ] in any action or proceeding being
prosecuted or defended by Exelixis, if so requested by Exelixis or required by
law, and Exelixis will [ * ].  BMS shall have the right to participate and
be represented in any such suit by its own counsel at its own expense.  No settlement of any such action or defense
which restricts the scope, or adversely affects the enforceability, with
respect to small molecules, of a BMS Target Patent may be entered into by
Exelixis without the prior consent of BMS, which consent shall not be
unreasonably withheld.  This
Section 8.4(c)(i)(2) shall not apply to any BMS Target Patent that does
not have any claim that pertains to the areas in which Exelixis has rights
pursuant to Section 5.3.


 


(ii)                                EXEL
Target Patents


 


(1)                                 Enforcement
by Exelixis.  In the event that
in-house counsel of either Party becomes aware of a suspected infringement of a
Patent claiming a Target Invention [ * ],
such Party shall notify the other Party promptly, and following such
notification, the Parties shall confer. 
Each Party shall provide the same level of disclosure to its in-house


 


38

















 


counsel concerning
suspected infringement of a EXEL Sole Patent as such Party would provide with
respect to suspected infringement of its own issued Patent or an exclusively
licensed issued Patent claiming a product it is developing or commercializing
independent of this Amended and Restated Agreement.  Exelixis shall have the right, but shall not be obligated, to
bring an infringement action or to defend such proceedings at its own expense,
in its own name and entirely under its own direction and control.  BMS will reasonably assist Exelixis [ * ] in such actions or proceedings if so
requested, and will lend its name to such actions or proceedings if requested
by Exelixis or required by law, and Exelixis will [ * ].  BMS shall have
the right to participate and be represented in any such suit by its own counsel
at its own expense.  No settlement of
any such action or defense which restricts the scope, or adversely affects the
enforceability, of an EXEL Target Patent may be entered into by Exelixis
without the prior consent of BMS, which consent shall not be unreasonably
withheld.


 


(2)                                 Enforcement
by BMS.  If Exelixis elects not to
bring any action for infringement or to defend any proceeding described in
Section 8.4(c)(ii)(1) and so notifies BMS, then, subject to the rights of
any Third Party licensors of such Patent to Exelixis, BMS may bring such action
or defend such proceeding at its own expense, in its own name and entirely
under its own direction and control. 
Exelixis will reasonably assist BMS [
* ] in any action or proceeding being prosecuted or defended by BMS,
if so requested by BMS or required by law, and BMS will [ * ]. 
Exelixis shall have the right to participate and be represented in any
such suit by its own counsel at its own expense.  No settlement of any such action or defense which restricts the
scope, or adversely affects the enforceability of, an EXEL Target Patent may be
entered into by BMS without the prior consent of Exelixis, which consent shall
not be unreasonably withheld.  This
Section 8.4(c)(ii)(2) shall not apply to any EXEL Target Patent that does
not have any claim that pertains to the areas in which BMS has rights pursuant
to Section 5.1.


 


(iii)                            Other
Target Patents.


 


(1)                                 Enforcement
by Exelixis.  In the event that
in-house counsel of either Party becomes aware of a suspected infringement of a
Patent that claims a Target Invention but is not a BMS Target Patent or an EXEL
Target Patent (for purposes of this Section 8.4 only, an “Other Target
Patent”), such Party shall notify the other Party promptly, and following such
notification, the Parties shall confer. 
Each Party shall provide the same level of disclosure to its in-house
counsel concerning suspected infringement of an Other Target Patent as such
Party would provide with respect to suspected infringement of its own issued
Patent or an exclusively licensed issued Patent claiming a product it is
developing or commercializing independent of this Amended and Restated
Agreement.  Exelixis shall have the
right, but shall not be obligated, to bring an infringement action or to defend
such proceedings at its own expense, in its own name and entirely under its own
direction and control.  BMS will
reasonably assist Exelixis [ * ]
in such actions or proceedings if so requested, and will lend its name to such
actions or proceedings if requested by Exelixis or required by law, and
Exelixis will [ * ].  BMS shall have the right to participate and
be represented in any such suit by its own counsel at its own expense.


 


(2)                                 Enforcement
by BMS.  If Exelixis elects not to
bring any action for infringement or to defend any proceeding described in
Section 8.4(c)(iii)(1) and so


 


39

















 


notifies BMS, then
BMS may bring such action or defend such proceeding at its own expense, in its
own name and entirely under its own direction and control.  Exelixis will reasonably assist BMS [ * ] in any action or proceeding being
prosecuted or defended by BMS, if so requested by BMS or required by law, and
BMS will [ * ].  Exelixis shall have the right to participate
and be represented in any such suit by its own counsel at its own expense.  No settlement of any such action or defense
which restricts the scope or adversely affects the enforceability of an Other
Target Patent may be entered into by BMS without the prior consent of Exelixis,
which consent shall not be unreasonably withheld.


 


(d)                                  Enforcement
of Joint Patents.


 


(i)                                    BMS
Joint Patents.


 


(1)                                 Enforcement
by BMS.  In the event that
management or in-house counsel for either Party becomes aware of a suspected
infringement of a Patent claiming a Joint Invention [ * ], such Party shall notify the other Party promptly, and
following such notification, the Parties shall confer.  Each Party shall provide the same level of
disclosure to its in-house counsel concerning suspected infringement of a BMS
Joint Patent as such Party would provide with respect to suspected infringement
of its own issued Patent or an exclusively licensed issued Patent claiming a
product it is developing or commercializing independent of this Amended and
Restated Agreement.  BMS shall have the
right, but shall not be obligated, to bring an infringement action or to defend
such proceedings at its own expense, in its own name and entirely under its own
direction and control.  Exelixis will
reasonably assist BMS [ * ] in
such actions or proceedings if so requested, and will lend its name to such
actions or proceedings if requested by BMS or required by law, and BMS will [ * ]. 
Exelixis shall have the right to participate and be represented in any
such suit by its own counsel at its own expense.  No settlement of any such action or defense which restricts the
scope or affects the enforceability of a BMS Joint Patent may be entered into
by BMS without the prior consent of Exelixis, which consent shall not be
unreasonably withheld.


 


(2)                                 Enforcement
by Exelixis.  If BMS elects not to
bring any action for infringement or to defend any proceeding described in
Section 8.4(d)(i)(1) and so notifies Exelixis, then Exelixis may bring
such action or defend such proceeding at its own expense, in its own name and
entirely under its own direction and control. 
BMS will reasonably assist Exelixis [
* ] in any action or proceeding being prosecuted or defended by
Exelixis, if so requested by Exelixis or required by law, and Exelixis will [ * ]. 
BMS shall have the right to participate and be represented in any such
suit by its own counsel at its own expense. 
No settlement of any such action or defense which restricts the scope or
affects the enforceability of a BMS Joint Patent may be entered into by Exelixis
without the prior consent of BMS, which consent shall not be unreasonably
withheld.


 


(ii)                                EXEL
Joint Patents.


 


(1)                                 Enforcement
by Exelixis.  In the event that
management or in-house counsel for either Party becomes aware of a suspected
infringement of a Patent claiming a Joint Invention [ * ], such Party shall notify the other Party promptly, and
following such notification, the Parties shall confer.  Each Party shall provide the same level of
disclosure


 


40

















 


to its in-house
counsel concerning suspected infringement of an EXEL Joint Patent as such Party
would provide with respect to suspected infringement of its own issued Patent
or an exclusively licensed issued Patent claiming a product it is developing or
commercializing independent of this Amended and Restated Agreement.  Exelixis shall have the right, but shall not
be obligated, to bring an infringement action or to defend such proceedings at
its own expense, in its own name and entirely under its own direction and
control.  BMS will reasonably assist
Exelixis [ * ] in such actions or
proceedings if so requested, and will lend its name to such actions or
proceedings if requested by Exelixis or required by law, and Exelixis will [ * ]. 
BMS shall have the right to participate and be represented in any such
suit by its own counsel at its own expense. 
No settlement of any such action or defense which restricts the scope or
affects the enforceability of an EXEL Joint Patent may be entered into by Exelixis
without the prior consent of BMS, which consent shall not be unreasonably
withheld.


 


(2)                                 Enforcement
by BMS.  If Exelixis elects not to
bring any action for infringement or to defend any proceeding described in
Section 8.4(d)(ii)(1) and so notifies BMS, then, subject to the rights of
any Third Party licensors of such Patent to Exelixis, BMS may bring such action
or defend such proceeding at its own expense, in its own name and entirely
under its own direction and control. 
Exelixis will reasonably assist BMS [
* ] in any action or proceeding being prosecuted or defended by BMS,
if so requested by BMS or required by law, and BMS will [ * ]. 
Exelixis shall have the right to participate and be represented in any
such suit by its own counsel at its own expense.  No settlement of any such action or defense which restricts the
scope or affects the enforceability of an EXEL Joint Patent may be entered into
by BMS without the prior consent of Exelixis, which consent shall not be
unreasonably withheld.


 


(iii)                            Other
Joint Patents.


 


(1)                                 Enforcement
by BMS.  In the event that in-house
counsel for either Party becomes aware of a suspected infringement of a Patent
that claims a Joint Invention but is not a BMS Joint Patent or an EXEL Joint
Patent (for purposes of this Section 8.4 only, an “Other Joint Patent”),
such Party shall notify the other Party promptly, and following such
notification, the Parties shall confer. 
Each Party shall provide the same level of disclosure to its in-house
counsel concerning suspected infringement of an Other Joint Patent as such
Party would provide with respect to suspected infringement of its own issued
Patent or an exclusively licensed issued Patent claiming a product it is
developing or commercializing independent of this Amended and Restated
Agreement.  BMS shall have the right,
but shall not be obligated, to prosecute an infringement action or to defend
such proceedings at its own expense, in its own name and entirely under its own
direction and control.  Exelixis will
reasonably assist BMS [ * ] in
such actions or proceedings if so requested, and will lend its name to such
actions or proceedings if requested by BMS or required by law, and BMS will [ * ]. 
Exelixis shall have the right to participate and be represented in any
such suit by its own counsel at its own expense.  No settlement of any such action or defense which restricts the
scope or affects the enforceability of an Other Joint Patent may be entered
into by BMS without the prior consent of Exelixis, which consent shall not be
unreasonably withheld.


 


(2)                                 Enforcement
by Exelixis.  If BMS elects not to
bring any action for infringement or to defend any proceeding described in
Section 8.4(d)(iii)(1) and so


 


41

















 


notifies Exelixis,
then Exelixis may bring such action or defend such proceeding at its own
expense, in its own name and entirely under its own direction and control.  BMS will reasonably assist Exelixis [ * ] in any action or proceeding being
prosecuted or defended by Exelixis, if so requested by Exelixis or required by
law, and Exelixis will [ * ].  BMS shall have the right to participate and
be represented in any such suit by its own counsel at its own expense.  No settlement of any such action or defense
which restricts the scope or affects the enforceability of an Other Joint
Patent may be entered into by Exelixis without the prior consent of BMS, which
consent shall not be unreasonably withheld.


 


(e)                                  General
Provisions Relating to Enforcement of Patents.


 


(i)                                    Withdrawal.  If either Party brings such an action or
defends such a proceeding under this Section 8.4 and subsequently ceases
to pursue or withdraws from such action or proceeding, it shall promptly notify
the other Party and the other Party may substitute itself for the withdrawing
Party under the terms of this Section 8.4 at its own expense.


 


(ii)                                Recoveries.  In the event either Party exercises the
rights conferred in this Section 8.4 and recovers any damages or other
sums in such action, suit or proceeding or in settlement thereof, such damages
or other sums recovered shall first be applied to all out-of-pocket costs and
expenses incurred by the Parties in connection therewith, including attorneys
fees.  If such recovery is insufficient
to cover all such costs and expenses of both Parties, it shall be shared [ * ]. 
If after such reimbursement any funds shall remain from such damages or
other sums recovered, and such funds shall be [
* ].


 


8.5                               Defense
of Third Party Claims.


 


(a)                                  If
a claim is brought by a Third Party that any activity related to work performed
by a Party under the Collaboration infringes the intellectual property rights
of such Third Party, each Party will give prompt written notice to the other
Party of such claim.  If the Third Party
claim arises from Exelixis’ activities under the Collaboration, Exelixis shall
control and bear the expense of its own defense and, except as set forth in
Section 8.5(b), Exelixis shall [ * ].  Exelixis shall not enter into a settlement
agreement with such Third Party without the written consent of BMS, which shall
not be unreasonably withheld.  If the
Third Party claim arises from BMS’ activities under the Collaboration, BMS
shall control and bear the expense of its own defense and, except as set forth
in Section 8.5(b), BMS shall [ * ].  BMS shall not enter into a settlement
agreement with such Third Party without the written consent of Exelixis, which
shall not be unreasonably withheld.


 


(b)                                  The
[ * ] of Exelixis under
Section 8.5(a) shall not apply to alleged infringement of Third Party
technology rights by Exelixis in the course of performing work under this
Amended and Restated Agreement where (i) prior to the conduct of such work
Exelixis submitted to the JMT a written description of the Third Party
technology in question and the work that Exelixis proposed to conduct, (ii) the
JMT approved Exelixis’ conduct of such work, and (iii) the alleged infringement
arose by reason of such work. The [ * ]
of BMS under Section 8.5(a) shall not apply to alleged infringement of Third
Party technology rights by BMS in the course of performing work under this
Amended and Restated Agreement where (i) prior to the conduct of such work BMS
submitted to the JMT a written description of the Third Party


 


42

















 


technology in
question and the work that BMS proposed to conduct, (ii) the JMT approved BMS’
conduct of such work, and (iii) the alleged infringement arose by reason of
such work.  In either such case, each
Party shall [ * ].  In any event, neither Party shall be
required to conduct any work under this Amended and Restated Agreement which it
believes may infringe Third Party rights.


 


8.6                               Copyright
Registrations.  Copyrights and
copyright registrations on copyrightable subject matter shall be filed,
prosecuted, defended, and maintained, and the Parties shall have the right to
pursue infringers of any copyrights owned or Controlled by it, in substantially
the same manner as the Parties have allocated such responsibilities, and the
expenses therefor, for patent rights under this Article 8.


 


9.                                      CONFIDENTIALITY


 


9.1                               Nondisclosure
of Confidential Information.  All
Information disclosed by one Party to the other Party pursuant to this Amended
and Restated Agreement shall be “Confidential Information” for all purposes
hereunder.  The Parties agree that for a
period of [ * ] after the end of
the Research Term or [ * ] after
receipt of such Confidential Information (whichever period is longer), a Party
receiving Confidential Information of the other Party will (i) use
commercially reasonable efforts to maintain in confidence such Confidential
Information (but not less than those efforts as such Party uses to maintain in
confidence its own proprietary industrial information of similar kind and value)
and not to disclose such Confidential Information to any Third Party without
prior written consent of the other Party, except for disclosures made in
confidence to any Third Party under terms consistent with this Amended and
Restated Agreement and made in furtherance of this Amended and Restated
Agreement or of rights granted to a Party hereunder, and (ii) not use such
other Party’s Confidential Information for any purpose except those permitted
by this Amended and Restated Agreement (it being understood that this
subsection (ii) shall not create or imply any rights or licenses not
expressly granted under Article 5 hereof).


 


9.2                               Exceptions.  The obligations in Section 9.1 shall
not apply with respect to any portion of the Confidential Information that the
receiving Party can show by competent written proof:


 


(a)                                  Is
publicly disclosed by the disclosing Party, either before or after it is
disclosed to the receiving Party hereunder; or


 


(b)                                  Was
known to the receiving Party or any of its Affiliates, without obligation to
keep it confidential, prior to disclosure by the disclosing Party; or


 


(c)                                  Is
subsequently disclosed to the receiving Party or any of its Affiliates by a
Third Party lawfully in possession thereof and without obligation to keep it
confidential; or


 


(d)                                  Is
published by a Third Party or otherwise becomes publicly available or enters
the public domain, either before or after it is disclosed to the receiving
Party; or


 


43



















 


(e)                                  Has
been independently developed by employees or contractors of the receiving Party
or any of its Affiliates without the aid, application or use of Confidential
Information.


 


9.3                               Authorized
Disclosure.  A Party may disclose
the Confidential Information belonging to the other Party to the extent such
disclosure is reasonably necessary in the following instances:


 


(a)                                  Filing
or prosecuting Patents relating to Target Inventions, Sole Inventions, Joint
Inventions or Products;


 


(b)                                  Regulatory
filings;


 


(c)                                  Prosecuting
or defending litigation;


 


(d)                                  Complying
with applicable governmental regulations; and


 


(e)                                  Disclosure,
in connection with the performance of this Amended and Restated Agreement, to
Affiliates, potential collaborators, partners, and licensees (including
potential co-marketing and copromotion contractors), research collaborators,
potential investment bankers, investors, lenders, and investors, employees,
consultants, or agents, each of whom prior to disclosure must be bound by
similar obligations of confidentiality and non-use at least equivalent in scope
to those set forth in this Article 9.


 


The Parties acknowledge that the terms of this Amended and Restated
Agreement shall be treated as Confidential Information of both Parties.  Such terms may be disclosed by a Party to
individuals or entities covered by 9.3(e) above, each of whom prior to
disclosure must be bound by similar obligations of confidentiality and non-use
at least equivalent in scope to those set forth in this Article 9.  In addition, a copy of this Amended and
Restated Agreement may be filed by either Party with the Securities and
Exchange Commission in connection with any public offering of such Party’s
securities.  In connection with any such
filing, such Party shall endeavor to obtain confidential treatment of economic
and trade secret information.


 


In any event, the Parties agree to take all reasonable action to avoid
disclosure of Confidential Information except as permitted hereunder.


 


9.4                               Termination
of Prior Agreements.  This Amended
and Restated Agreement supersedes the Mutual Confidential Disclosure Agreement
between Exelixis and BMS dated December 5, 2000 and the amendments thereto
dated January 11, 2001 and February 7, 2001.  All
Information exchanged between the Parties under such earlier agreement shall be
deemed Confidential Information and shall be subject to the terms of this
Article 9.


 


9.5                               Publicity.  The Parties agree that the public
announcement of the execution of this Amended and Restated Agreement shall be
substantially in the form of the press release attached as Exhibit 9.5.  Any other publication, news release or other
public announcement relating to this Amended and Restated Agreement or to the
performance hereunder, shall first be reviewed and approved by both Parties;
provided, however, that any disclosure which is required by law as advised by
the disclosing Party’s counsel may be made without the prior consent of the


 


44

















 


other Party,
although the other Party shall be given prompt notice of any such legally
required disclosure and to the extent practicable shall provide the other Party
an opportunity to comment on the proposed disclosure.


 


9.6                               Publications.  Neither Party shall publish or present the
results of studies carried out under this Amended and Restated Agreement
without the opportunity for prior review by the other Party.  Subject to Section 9.3, each Party
agrees to provide the other Party the opportunity to review any proposed
abstracts, manuscripts or presentations (including verbal presentations) which
relate to any Selected Target at least [ * ]
prior to its intended submission for publication and agrees, upon request, not
to submit any such abstract or manuscript for publication until the other Party
is given a reasonable period of time to secure patent protection for any
material in such publication which it believes to be patentable.  Both Parties understand that a reasonable
commercial strategy may require delay of publication of information or filing
of patent applications.  The Parties
agree to review and consider delay of publication and filing of patent
applications under certain circumstances. 
The JMT will review such requests and recommend subsequent action.  Neither Party shall have the right to
publish or present Confidential Information of the other Party which is subject
to Section 9.1.  Nothing contained
in this Section 9.6 shall prohibit the inclusion of Confidential
Information of the nonfiling Party necessary for a patent application, provided
the nonfiling Party is given a reasonable opportunity to review the extent and
necessity for its Confidential Information to be included prior to submission
of such patent application.  Any
disputes between the Parties regarding delaying a publication or presentation
to permit the filing of a patent application shall be referred to the JMT.


 


10.                               TERM
AND TERMINATION


 


10.1                        Term.  This Amended and Restated Agreement
supercedes the Agreement as of the Amendment Effective Date, shall become effective
on the Amendment Effective Date and shall remain in effect until terminated in
accordance with Section 10.2 or by mutual written agreement, or until the
expiration of the last royalty payment obligation with respect to any Product,
as provided in Section 7.4. 
Termination of the Research Term shall not constitute termination of
this Amended and Restated Agreement; termination of this Amended and Restated
Agreement shall result in termination of the Research Term.


 


10.2                        Termination
for Material Breach.


 


(a)                                  If
either Party believes that the other is in material breach of this Amended and
Restated Agreement (including without limitation any material breach of a
representation or warranty made in this Amended and Restated Agreement), then
the non-breaching Party may deliver notice of such breach to the other
Party.  In such notice the non-breaching
Party shall identify the actions or conduct that such Party would consider to
be an acceptable cure of such breach. 
For all breaches other than a failure to make a payment set forth in
Article 7, the allegedly breaching Party shall have [ * ] to either cure such breach or, if
cure cannot be reasonably effected within such [ * ] period, to deliver to the other Party a plan for curing
such breach which is reasonably sufficient to effect a cure.  Such a plan shall set forth a program for
achieving cure as rapidly as practicable. 
Following delivery of such plan, the breaching Party shall use Diligent
Efforts to carry out the plan and cure the breach.  For any breach arising from a


 


45

















 


failure to make a
payment set forth in Article 7, the allegedly breaching Party shall have [ * ] to cure such breach.


 


(b)                                  If
the Party receiving notice of breach fails to cure such breach within the [ * ] (as applicable), or the Party
providing the notice reasonably determines that the proposed corrective plan or
the actions being taken to carry it out is not commercially practicable, the
Party originally delivering the notice may terminate this Amended and Restated
Agreement upon [ * ] advance
written notice, provided, that if the breach applies only to a given Selected
Target, a given Product, Pharmacogenomic Product, a given Lead Compound/Back-Up
Compound, or to the license rights granted to a Party under any of subsections
5.1(a)(iv)-(v), 5.1(a)(vii)-(viii), 5.3(d), or 5.3(g), the non-breaching Party
may only terminate the breaching Party’s rights with respect to such Selected
Target, Product, Pharmacogenomic Product, Lead Compound/Back-Up Compound, or
the license rights granted to a Party under such subsection.  Notwithstanding the foregoing, a Party may
terminate this Amended and Restated Agreement upon the third or any subsequent
such termination of the other Party’s rights with respect to a given Selected
Target, a given Product, Pharmacogenomic Product, a given Lead Compound/Back-Up
Compound, or the license rights granted to the other Party under any of
subsections 5.1(a)(iv)-(v), 5.1(a)(vii)-(viii), 5.3(d), or 5.3(g).


 


(c)                                  If
a Party gives notice of termination under this Section 10.2 and the other
Party disputes whether such notice was proper, then the issue of whether this
Amended and Restated Agreement has been terminated shall be resolved in
accordance with Section 13.1.  If
as a result of such dispute resolution process it is determined that the notice
of termination was proper, then such termination shall be deemed to have been
effective if the breaching Party fails thereafter to cure such breach in
accordance with the determination made in the resolution process under
Section 13.1 within the time period set forth in Section 10.2(a) for
the applicable breach following such determination.  If as a result of such dispute resolution process it is
determined that the notice of termination was improper, then no termination
shall have occurred and this Amended and Restated Agreement shall have remained
in effect.


 


10.3                        Effect of
Termination; Survival.


 


(a)                                  In the event of termination of this Amended and
Restated Agreement for any reason other than material breach pursuant to
Section 10.2 or by mutual agreement, the following provisions of this
Amended and Restated Agreement shall survive: Articles 1, 4, 9, 12 and 13, and
Sections 2.16, 2.18, 3.8, 3.10, 5.1, 5.2(a), 5.3, 5.4, 6.2(a) (except for the
last sentence of 6.2(a)(ii)), 6.2(b), 6.3(a), 7.14, 7.15, 8.1, 8.3, 8.4, 8.5,
10.3, and 11.3.


 


(b)                                  In the event of termination of this Amended and
Restated Agreement pursuant to Section 10.2, the provisions of this
Amended and Restated Agreement referenced in Section 10.3(a) shall survive
(except that Sections 8.3 and 8.4 shall survive only with respect to Joint
Inventions); provided, however, that any licenses granted under this Amended
and Restated Agreement in favor of the breaching Party shall terminate, other
than (A) the license rights granted to BMS under Section 5.1(b) (which
shall survive even if Exelixis is the terminating Party, unless such
termination is due to BMS’ breach of such license), (B) the license rights
granted to BMS under Section 5.1(a)(viii) (which shall survive even if
Exelixis is the terminating Party, unless such termination is due to BMS’
breach of such license), and (C) the license rights


 


46

















 


granted to Exelixis under Section 5.3(d)(ii) (which shall survive
even if BMS is the terminating Party, unless such termination is due to
Exelixis’ breach of such license).  In
such case, the non-breaching Party shall continue to hold the licenses granted
hereunder, subject to the milestone and royalties set forth herein (which
relevant provisions shall survive termination).  If BMS terminates this Amended and Restated Agreement pursuant to
Section 10.2 on account of Exelixis’ breach, then Section 5.2(b)(v)
shall survive such termination, subject to the milestone and royalties set
forth herein.


 


(c)                                  In
any event, termination of this Amended and
Restated Agreement shall not relieve the Parties of any liability which
accrued hereunder prior to the effective date of such termination nor preclude
either Party from pursuing all rights and remedies it may have hereunder or at
law or in equity with respect to any breach of this Amended and Restated Agreement nor prejudice either Party’s right
to obtain performance of any obligation.


 


11.                               REPRESENTATIONS
AND COVENANTS


 


11.1                        Mutual
Authority.  Exelixis and BMS each
represents and warrants to the other as of the Amendment Effective Date that:
(a) it has the authority and right to enter into and perform this Amended and
Restated Agreement, (b) this Amended and Restated Agreement is a legal and
valid obligation binding upon it and is enforceable in accordance with its
terms, subject to applicable limitations on such enforcement based on
bankruptcy laws and other debtors’ rights, and (c) its execution, delivery and
performance of this Amended and Restated Agreement will not conflict in any
material fashion with the terms of any other agreement or instrument to which
it is or becomes a party or by which it is or becomes bound, nor violate any
law or regulation of any court, governmental body or administrative or other
agency having authority over it.


 


11.2                        Rights in
Technology.  During [ * ], each Party will use commercially
reasonable efforts to maintain (but without an obligation to renew) and not to
breach any agreements with Third Parties that provide a grant of rights from
such Third Party to a Party that are Controlled by such Party and are licensed
or become subject to a license from such Party to the other Party under
Article 5 or 6.  Each Party agrees
to provide promptly the other Party with notice of any such alleged
breach.  As of the Effective Date, each
Party is in compliance in all material respects with any aforementioned
agreements with Third Parties.


 


11.3                        Performance
by Affiliates.  The Parties
recognize that each may perform some or all of its obligations under this
Amended and Restated Agreement through Affiliates, provided, however, that each
Party shall remain responsible and be guarantor of the performance by its
Affiliates and shall cause its Affiliates to comply with the provisions of this
Amended and Restated Agreement in connection with such performance.  In particular, if any Affiliate of a Party
participates in research under this Amended and Restated Agreement or with
respect to Collaboration Compounds, (a) the restrictions of this Amended and
Restated Agreement which apply to the activities of a Party with respect to
Selected Targets and Collaboration Compounds shall apply equally to the
activities of such Affiliate, and (b) the Party affiliated with such Affiliate
shall assure, and hereby guarantees, that any intellectual property developed
by such Affiliate shall be governed by the provisions of this Amended and
Restated Agreement (and


 


47

















 


subject to the
licenses set forth in Article 5) as if such intellectual property had been
developed by the Party.


 


11.4                        Third
Party Rights.


 


(a)                                  Except
as already disclosed, each Party represents and warrants to the other Party
that, to its knowledge as of the Amendment Effective Date, its performance of
work under the Collaboration as contemplated by this Amended and Restated
Agreement shall not infringe the patent, trade secret or other intellectual
property rights of any Third Party. 
Each Party represents and warrants to the other Party that, to its
knowledge as of the Amendment Effective Date, it will not violate a contractual
or fiduciary obligation owed to such Third Party (including without limitation
misappropriation of trade secrets) to perform its work under the Collaboration
as contemplated by this Amended and Restated Agreement.


 


(b)                                  Except
as already disclosed, Exelixis represents and warrants to BMS that, to its
knowledge as of the Amendment Effective Date, the research conducted by
Exelixis to identify the Targets listed on Exhibit 1.44 did not infringe the
patent, trade secret or other intellectual property rights of any Third
Party.  Exelixis represents and warrants
to BMS that, to its knowledge as of the Amendment Effective Date, it did not
violate any fiduciary obligation owed to any Third Party (including without
limitation misappropriation of trade secrets) in conducting its research to
identify the Targets listed on Exhibit 1.44.


 


11.5                        Notice of
Infringement or Misappropriation.  [ * ] represents and warrants to [ * ] that, as of the Amendment Effective
Date, it has received no notice of infringement or misappropriation of any
alleged rights asserted by any third party in relation to any technology to be
used in connection with the Collaboration.


 


11.6                        Prior
Representations and Warranties.  The
representations and warranties set forth in Article 11 of the Agreement,
made as of the Effective Date, are shall hereby incorporated by reference as
though fully set forth herein, but only for purposes of Article 12 hereof.


 


12.                               INDEMNIFICATION
AND LIMITATION OF LIABILITY


 


12.1                        Mutual
Indemnification.  Subject to
Section 12.4, each Party hereby agrees to indemnify, defend and hold the
other Party, its Affiliates, its licensees, and its and their officers,
directors, employees, consultants, contractors, sublicensees and agents
(collectively, the “Indemnitees”) harmless from and against any and all damages
or other amounts payable to a Third Party claimant, as well as any reasonable
attorneys’ fees and costs of litigation incurred by such Indemnitee as to any
such Claim (as defined in this Section 12.1) until the indemnifying Party
has acknowledged that it will provide indemnification hereunder with respect to
such Claim as provided below, (collectively, “Damages”) resulting from claims,
suits, proceedings or causes of action (“Claims”) brought by such Third Party
against such Indemnitee based on: (a) a breach of warranty by the indemnifying
Party contained in the Agreement or this Amended and Restated Agreement; (b)
breach of the Agreement or this Amended and Restated Agreement or applicable
law by such indemnifying Party; (c) negligence or willful misconduct of a
Party, its Affiliates or (sub)licensees, or their respective employees, contractors
or agents in the performance of the Agreement or this Amended and Restated
Agreement; and/or (d) breach of a


 


48

















 


contractual or
fiduciary obligation owed by it to a Third Party (including without limitation
misappropriation of trade secrets).


 


12.2                        Indemnification
by BMS.  Subject to
Section 12.4, BMS hereby agrees to indemnify, defend and hold harmless
Exelixis and its directors, agents and employees from and against any and all
suits, claims, actions, demands, liabilities, expenses and/or loss, including
reasonable legal expenses and reasonable attorneys’ fees (“Losses”) resulting
directly or indirectly from the manufacture, use, handling, storage, sale or
other disposition of BMS Selected Targets, Collaboration Compounds or BMS
Products by BMS or its Affiliates, agents or sublicensees except to the extent
such Losses result from (a) a breach of warranty by Exelixis contained in the
Agreement or this Amended and Restated Agreement; (b) breach of the Agreement
or this Amended and Restated Agreement or applicable law by Exelixis; (c)
negligence or willful misconduct by Exelixis, its Affiliates or (sub)licensees,
or their respective employees, contractors or agents in the performance of the
Agreement or this Amended and Restated Agreement; and/or (d) breach of a
contractual or fiduciary obligation owed by Exelixis to a Third Party
(including without limitation misappropriation of trade secrets).


 


12.3                        Indemnification
by Exelixis.  Subject to
Section 12.4, Exelixis hereby agrees to indemnify, defend and hold
harmless BMS and its directors, agents and employees from and against any and
all suits, claims, actions, demands, liabilities, expenses and/or loss,
including reasonable legal expenses and reasonable attorneys’ fees (“Losses”)
resulting directly or indirectly from the manufacture, use, handling, storage,
sale or other disposition of EXEL Selected Targets, Collaboration Compounds or
EXEL Products by Exelixis or its Affiliates, agents or sublicensees except to
the extent such Losses result from: (a) a breach of warranty by BMS contained
in the Agreement or this Amended and Restated Agreement; (b) breach of the
Agreement or this Amended and Restated Agreement or applicable law by BMS; (c)
negligence or willful misconduct by BMS, its Affiliates or (sub)licensees, or
their respective employees, contractors or agents in the performance of the
Agreement or this Amended and Restated Agreement; and/or (d) breach of a
contractual or fiduciary obligation owed by BMS to a Third Party (including
without limitation misappropriation of trade secrets).


 


12.4                        Conditions
to Indemnification.  As used herein,
“Indemnitee” shall mean a party entitled to indemnification under the terms of
Section 12.1, 12.2 or 12.3.  It
shall be a condition precedent to an Indemnitee’s right to seek indemnification
under such Section 12.1, 12.2 or 12.3:


 


(i)                                    shall
inform the indemnifying Party under such applicable Section of a Claim as
soon as reasonably practicable after it receives notice of the Claim;


 


(ii)                                shall,
if the indemnifying Party acknowledges that such Claim falls within the scope
of its indemnification obligations hereunder, permit the indemnifying Party to
assume direction and control of the defense, litigation, settlement, appeal or
other disposition of the Claim (including the right to settle the claim solely
for monetary consideration); provided, that the indemnifying Party shall seek
the prior written consent (not to be unreasonably withheld or delayed) of any
such Indemnitee as to any settlement which would materially diminish or
materially adversely affect the scope, exclusivity or duration of any Patents
licensed under this Amended and Restated Agreement, would require any payment
by such Indemnitee, would


 


49

















 


require an
admission of legal wrongdoing in any way on the part of an Indemnitee, or would
effect an amendment of this Amended and Restated Agreement; and


 


(iii)                            shall
fully cooperate (including providing access to and copies of pertinent records
and making available for testimony relevant individuals subject to its control)
as reasonably requested by, and at the expense of, the indemnifying Party in
the defense of the Claim.


 


Provided that an Indemnitee has complied with the foregoing, the
indemnifying Party shall provide attorneys reasonably acceptable to the
Indemnitee to defend against any such Claim. 
Subject to the foregoing, an Indemnitee may participate in any
proceedings involving such Claim using attorneys of its/his/her choice and at
its/his/her expense.  In no event may an
Indemnitee settle or compromise any Claim for which it/he/she intends to seek
indemnification from the indemnifying Party hereunder without the prior written
consent of the indemnifying Party, or the indemnification provided under such
Section 12.1, 12.2 or 12.3 as to such Claim shall be null and void.


 


12.5                        Limitation
of Liability.  EXCEPT FOR AMOUNTS
PAYABLE TO THIRD PARTIES BY A PARTY FOR WHICH IT SEEKS REIMBURSEMENT OR
INDEMNIFICATION PROTECTION FROM THE OTHER PARTY PURSUANT TO SECTIONS 8.5(a),
12.1, 12.2 AND 12.3, AND EXCEPT FOR BREACH OF SECTION 9.1 HEREOF, IN NO
EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON A CLAIM OR
ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, OR
OTHERWISE, ARISING OUT OF THE AGREEMENT OR THIS AMENDED AND RESTATED AGREEMENT,
UNLESS SUCH DAMAGES ARE DUE TO THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE
LIABLE PARTY (INCLUDING GROSS NEGLIGENCE OR WILFUL BREACH WITH RESPECT TO A
PARTY’S REPRESENTATIONS AND WARRANTIES IN ARTICLE 11).  For clarification, the foregoing sentence
shall not be interpreted to limit or to expand the express rights specifically
granted in the sections of this Amended and Restated Agreement.


 


12.6                        Collaboration
Disclaimer.  EXCEPT AS PROVIDED IN
ARTICLE 11 ABOVE, BMS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF
ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF
DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT
OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES WITH RESPECT TO ANY
RESEARCH RESULTS, TARGETS, DATA, OR INVENTIONS (AND ANY PATENT RIGHTS OBTAINED
THEREON) IDENTIFIED, MADE OR GENERATED BY BMS AS PART OF THE COLLABORATION OR
OTHERWISE MADE AVAILABLE TO EXELIXIS PURSUANT TO THE TERMS OF THE AGREEMENT OR
THIS AMENDED AND RESTATED AGREEMENT. 
EXCEPT AS PROVIDED IN ARTICLE 11 ABOVE, EXELIXIS EXPRESSLY
DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY,


 


50

















 


FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF
THIRD PARTIES WITH RESPECT TO ANY RESEARCH RESULTS, TARGETS, DATA, OR
INVENTIONS (AND ANY PATENT RIGHTS OBTAINED THEREON) IDENTIFIED, MADE OR
GENERATED BY EXELIXIS AS PART OF THE COLLABORATION OR OTHERWISE MADE AVAILABLE
TO BMS PURSUANT TO THE TERMS OF THE AGREEMENT OR THIS AMENDED AND RESTATED
AGREEMENT.


 


13.                               MISCELLANEOUS


 


13.1                        Dispute
Resolution.  In the event of any
controversy or claim arising out of, relating to or in connection with any
provision of the Agreement or this Amended and Restated Agreement, other than a
dispute addressed in Section 13.3, the Parties shall try to settle their
differences amicably between themselves first, by referring the disputed matter
to the Chief Medical Officer of Exelixis and the Senior Vice President, Drug
Discovery and Exploratory Development of BMS (or if either foregoing position
does not exist at such time, the closest successor in title to such position)
and, if not resolved by such individuals, by referring the disputed matter to
the President of Exelixis and the President of the BMS Pharmaceutical Group or
their designees.  Either Party may
initiate such informal dispute resolution by sending written notice of the dispute
to the other Party, and, within 20 days after such notice, such representatives
of the scientific management of the Parties shall meet for attempted resolution
by good faith negotiations.  If such
representatives are unable to resolve such dispute within thirty (30) days of
their first meeting for such negotiations, then said Officers shall meet within
twenty (20) days thereafter for attempted resolution by good faith
negotiations.  If the Officers are
unable to resolve such dispute within thirty (30) days of their first meeting
for such negotiations, either Party may seek to have such dispute resolved in
any United States federal or state court of competent jurisdiction and
appropriate venue, provided, that if such suit includes a Third Party claimant or
defendant, and jurisdiction and venue with respect to such Third Party
appropriately resides outside the United States, then in any other jurisdiction
or venue permitted by applicable law. 
To the extent permitted by law, the Party that seeks such judicial
resolution hereby consents to the other Party’s forum of choice.


 


13.2                        Governing
Law.  Resolution of all disputes
arising out of or related to the Agreement or this Amended and Restated
Agreement or the performance, enforcement, breach or termination of the
Agreement or this Amended and Restated Agreement and any remedies relating
thereto, shall be governed by and construed under the substantive laws of the
State of California, as applied to agreements executed and performed entirely
in the State of California by residents of the State of California, without
regard to conflicts of law rules provided, however, that resolution of all
disputes arising out of or related to the performance, enforcement or breach of
Section 2.18 of this Amended and Restated Agreement and any remedies
relating thereto shall be governed by and construed under the substantive laws
of the State of New York, as applied to agreements executed and performed
entirely in the State of New York by residents of the State of New York, without
regard to its conflicts of law rules.


 


13.3                        Patents
and Trademarks.  Any dispute,
controversy or claim relating to the scope, validity, enforceability or
infringement of any Patent rights covering the manufacture, use or sale of any
Product or of any trademark rights related to any Product shall be submitted to
a


 


51

















 


court of competent
jurisdiction in the territory in which such Patent or trademark rights were
granted or arose.


 


13.4                        Entire
Agreement; Amendment.  This Amended
and Restated Agreement and the MOA Agreement set forth the complete, final and
exclusive agreement and all the covenants, promises, agreements, warranties,
representations, conditions and understandings between the Parties hereto and supersedes
and terminates all prior agreements and understandings between the Parties,
except for the MOA Agreement; provided, however, that all events that
occurred prior to the Amendment Effective Date shall be governed by the
Agreement and the First Amendment as they existed prior to the Amendment
Effective Date.  There are no covenants,
promises, agreements, warranties, representations, conditions or
understandings, either oral or written, between the Parties other than as are
set forth herein and therein.  No
subsequent alteration, amendment, change or addition to this Amended and
Restated Agreement shall be binding upon the Parties unless reduced to writing
and signed by an authorized officer of each Party.


 


13.5                        Export
Control.  This Amended and Restated
Agreement is made subject to any restrictions concerning the export of products
or technical information from the United States of America or other countries
which may be imposed upon or related to Exelixis or BMS from time to time.  Each Party agrees that it will not export,
directly or indirectly, any technical information acquired from the other Party
under this Amended and Restated Agreement or any products using such technical
information to a location or in a manner that at the time of export requires an
export license or other governmental approval, without first obtaining the
written consent to do so from the appropriate agency or other governmental
entity.


 


13.6                        Bankruptcy.


 


(a)                                  All
rights and licenses granted under or pursuant to this Amended and Restated
Agreement, including amendments hereto, by each Party to the other Party are,
for all purposes of Section 365(n) of Title 11 of the U.S. Code (“Title
11”), licenses of rights to intellectual property as defined in Title 11.  Each Party agrees during the term of this
Amended and Restated Agreement to create and maintain current copies or, if not
amenable to copying, detailed descriptions or other appropriate embodiments, to
the extent feasible, of all such intellectual property.  If a case is commenced by or against either
Party (the “Bankrupt Party”) under Title 11, then, unless and until this
Amended and Restated Agreement is rejected as provided in Title 11, the
Bankrupt Party (in any capacity, including debtor-in-possession) and its
successors and assigns (including, without limitation, a Title 11 Trustee)
shall, at the election of the Bankrupt Party made within 60 days after the
commencement of the case (or, if no such election is made, immediately upon the
request of the non-Bankrupt Party) either (i) perform all of the obligations
provided in this Amended and Restated Agreement to be performed by the Bankrupt
Party including, where applicable and without limitation, providing to the
non-Bankrupt Party portions of such intellectual property (including
embodiments thereof) held by the Bankrupt Party and such successors and assigns
or otherwise available to them or (ii) provide to the non-Bankrupt Party all
such intellectual property (including all embodiments thereof) held by the
Bankrupt Party and such successors and assigns or otherwise available to them.


 


52

















 


(b)                                  If
a Title 11 case is commenced by or against the Bankrupt Party and this Amended
and Restated Agreement is rejected as provided in Title 11 and the non-Bankrupt
Party elects to retain its rights hereunder as provided in Title 11, then the
Bankrupt Party (in any capacity, including debtor-in-possession) and its
successors and assigns (including, without limitations, a Title 11 Trustee) shall
provide to the non-Bankrupt Party all such intellectual property (including all
embodiments thereof) held by the Bankrupt Party and such successors and assigns
or otherwise available to them immediately upon the non-Bankrupt Party’s
written request therefor.  Whenever the
Bankrupt Party or any of its successors or assigns provides to the non-Bankrupt
Party any of the intellectual property licensed hereunder (or any embodiment
thereof) pursuant to this Section 13.6, the non-Bankrupt Party shall have
the right to perform the obligations of the Bankrupt Party hereunder with
respect to such intellectual property, but neither such provision nor such
performance by the non-Bankrupt Party shall release the Bankrupt Party from any
such obligation or liability for failing to perform it.


 


(c)                                  All
rights, powers and remedies of the non-Bankrupt Party provided herein are in
addition to and not in substitution for any and all other rights, powers and
remedies now or hereafter existing at law or in equity (including, without
limitation, Title 11) in the event of the commencement of a Title 11 case by or
against the Bankrupt Party.  The
non-Bankrupt Party, in addition to the rights, power and remedies expressly
provided herein, shall be entitled to exercise all other such rights and powers
and resort to all other such remedies as may now or hereafter exist at law or
in equity (including, without limitation, under Title 11) in such event.  The Parties agree that they intend the foregoing
non-Bankrupt Party rights to extend to the maximum extent permitted by law and
any provisions of applicable contracts with Third Parties, including without
limitation for purposes of Title 11, (i) the right of access to any
intellectual property (including all embodiments thereof) of the Bankrupt Party
or any Third Party with whom the Bankrupt Party contracts to perform an
obligation of the Bankrupt Party under this Amended and Restated Agreement,
and, in the case of the Third Party, which is necessary for the development,
registration and manufacture of licensed products and (ii) the right to
contract directly with any Third Party described in (i) in this sentence to
complete the contracted work.  Any
intellectual property provided pursuant to the provisions of this
Section 13.6 shall be subject to the licenses set forth elsewhere in this
Amended and Restated Agreement and the payment obligations of this Amended and
Restated Agreement, which shall be deemed to be royalties for purposes of Title
11.


 


13.7                        Force
Majeure.  Both Parties shall be
excused from the performance of their obligations under this Amended and
Restated Agreement to the extent that such performance is prevented by force
majeure and the nonperforming Party promptly provides notice of the prevention
to the other Party.  Such excuse shall
be continued so long as the condition constituting force majeure continues and
the nonperforming Party takes reasonable efforts to remove the condition.  For purposes of this Amended and Restated
Agreement, force majeure shall include conditions beyond the control of the
Parties, including without limitation, an act of God, voluntary or involuntary
compliance with any regulation, law or order of any government, war, civil
commotion, labor strike or lock-out, epidemic, failure or default of public
utilities or common carriers, destruction of production facilities or materials
by fire, earthquake, storm or like catastrophe; provided, however, the payment
of invoices due and owing hereunder shall not be delayed by the payer because
of a force majeure affecting the payer.


 


53

















 


13.8                        Notices.  Any notice required or permitted to be given
under this Amended and Restated Agreement shall be in writing, shall
specifically refer to this Amended and Restated Agreement and shall be deemed
to have been sufficiently given for all purposes if mailed by first class
certified or registered mail, postage prepaid, express delivery service or
personally delivered.  Unless otherwise
specified in writing, the mailing addresses of the Parties shall be as
described below.


 


	
  For Exelixis:

  	
  Exelixis, Inc.

  
	
   

  	
  170 Harbor Way

  
	
   

  	
  P.O. Box 511

  
	
   

  	
  South San Francisco, CA  94083

  
	
   

  	
  Attention:  Chief Executive
  Officer

  
	
   

  	
   

  
	
  With a copy to:

  	
  Cooley Godward LLP

  
	
   

  	
  Five Palo Alto Square

  
	
   

  	
  3000 El Camino Real

  
	
   

  	
  Palo Alto, CA  94306

  
	
   

  	
  Attention:  Robert L. Jones,
  Esq.

  
	
   

  	
   

  
	
  For BMS:

  	
  Bristol-Myers Squibb Pharmaceutical Research Institute

  
	
   

  	
  Route 206 and Province Line Road

  
	
   

  	
  Princeton, NJ  08543-4000

  
	
   

  	
  Attention: Senior Vice President – Drug Discovery

  
	
   

  	
   

  
	
  With a copy to:

  	
  Bristol-Myers Squibb Pharmaceutical Research Institute

  
	
   

  	
  Route 206 and Province Line Road

  
	
   

  	
  Princeton, NJ  08543-4000

  
	
   

  	
  Attention: Vice President and Senior Counsel – BMSPRI

  



 


13.9                        Consents
Not Unreasonably Withheld or Delayed. 
Whenever provision is made in this Amended and Restated Agreement for
either Party to secure the consent or approval of the other, that consent or
approval shall not unreasonably be withheld or delayed, and whenever in this
Amended and Restated Agreement provisions are made for one Party to object to
or disapprove a matter, such objection or disapproval shall not unreasonably be
exercised.


 


13.10                 Maintenance of
Records.  Each Party shall keep and
maintain all records required by law or regulation with respect to Products and
shall make copies of such records available to the other Party upon request.


 


13.11                 United States
Dollars.  References in this Amended
and Restated Agreement to “Dollars” or “$” shall mean the legal tender of the
United States of America.


 


13.12                 No Strict
Construction.  This Amended and
Restated Agreement has been prepared jointly and shall not be strictly
construed against either Party. 
Ambiguities, if any, in this Amended and Restated Agreement shall not be
construed against any Party, irrespective of which Party may be deemed to have
authored the ambiguous provision.


 


54

















 


13.13                 Assignment.  Neither Party may assign or transfer this
Amended and Restated Agreement or any rights or obligations hereunder without
the prior written consent of the other, except a Party may make such an
assignment without the other Party’s consent to an Affiliate or to a Third
Party successor to substantially all of the business of such Party to which
this Amended and Restated Agreement relates, whether in a merger, sale of
stock, sale of assets or other transaction; provided that any such permitted
successor or assignee of rights and/or obligations hereunder is obligated, by
reason of operation of law or pursuant to a written agreement with the other
Party, to assume performance of this Amended and Restated Agreement or such
rights and/or obligations; and provided, further, that if assigned to an
Affiliate, the assigning Party shall remain jointly and severally responsible
for the performance of this Amended and Restated Agreement by such
Affiliate.  Any permitted assignment
shall be binding on the successors of the assigning Party.  Any assignment or attempted assignment by
either Party in violation of the terms of this Section 13.13 shall be null
and void and of no legal effect.


 


13.14                 Electronic Data
Interchange.  If both Parties elect
to facilitate business activities hereunder by electronically sending and
receiving data in agreed formats (also referred to as Electronic Data
Interchange or “EDI”) in substitution for conventional paper-based documents,
the terms and conditions of this Amended and Restated Agreement shall apply to
such EDI activities.


 


13.15                 Counterparts.  This Amended and Restated Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.


 


13.16                 Further Actions.  Each Party agrees to execute, acknowledge
and deliver such further instruments, and to do all such other acts, as may be
necessary or appropriate in order to carry out the purposes and intent of this
Amended and Restated Agreement.


 


13.17                 Severability.  If any one (1) or more of the provisions of
this Amended and Restated Agreement is held to be invalid or unenforceable by
any court of competent jurisdiction from which no appeal can be or is taken,
the provision shall be considered severed from this Amended and Restated
Agreement and shall not serve to invalidate any remaining provisions hereof.  The Parties shall make a good faith effort
to replace any invalid or unenforceable provision with a valid and enforceable
one such that the objectives contemplated by the Parties when entering this
Amended and Restated Agreement may be realized.


 


13.18                 Headings.  The headings for each article and
section in this Amended and Restated Agreement have been inserted for
convenience of reference only and are not intended to limit or expand on the
meaning of the language contained in the particular article or section.


 


13.19                 No Waiver.  Any delay in enforcing a Party’s rights
under this Amended and Restated Agreement or any waiver as to a particular
default or other matter shall not constitute a waiver of such Party’s rights to
the future enforcement of its rights under this Amended and Restated Agreement,
excepting only as to an express written and signed waiver as to a particular
matter for a particular period of time.


 


55

















 


[ * ]


 


56

















 


IN WITNESS WHEREOF,
the Parties have executed this Amended and Restated Agreement in duplicate
originals by their proper officers as of the date and year first above written.


 


	
  BRISTOL-MYERS
  SQUIBB COMPANY

  	
  EXELIXIS, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ James B. D. Palmer

  	
   

  	
  By:

  	
  /s/ George Scangos

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
  President & CEO

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  12/15/03

  	
   

  	
  Date:

  	
  12/21/03

  	
   

  
											



 












[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


57

















 


EXHIBIT 1.39A



GENETIC ENTRY POINTS FOR INITIAL RESEARCH TERM


 


[ * ]


 


 












[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1

















 


EXHIBIT 1.39B



GENETIC ENTRY POINTS FOR SUBSEQUENT RESEARCH TERM


 


[ * ]


 












[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


2

















 


EXHIBIT 1.44


 


[
* ]


 


 












[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1

















 


EXHIBIT 1.79


 


TIER
1 VALIDATION


 


[ * ]


 


 












[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1

















 


EXHIBIT 1.80


 


TIER
2 VALIDATION


 


[ * ]


 


 












[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1

















 


EXHIBIT 3.11


 


[ * ]


 


 












[ * ] = CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1

















 


EXHIBIT 5.1(a)(vii)


 


[ * ]


 


 












[ * ] = CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1

















 


EXHIBIT 5.3(d)


 


[ * ]


 


 












[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1

















 


EXHIBIT 9.5


Press
Release


 


 


DRAFT:
NOT FOR PUBLICATION


 


 


For
Immediate Release


 


Contact:


Jane M. Green, Ph.D.


VP, Corporate Communications


Exelixis, Inc.


650 837 7579


jmgreen@exelixis.com


 


BMS Contact


Title


BMS


Phone


Email


 


EXELIXIS
AND BRISTOL-MYERS SQUIBB


EXTEND
ONCOLOGY COLLABORATION


 


SOUTH SAN FRANCISCO, Calif. and PRINCETON, NJ – {Date} 2003 – Exelixis,
Inc. (Nasdaq: EXEL) and Bristol-Myers Squibb (NYSE:BMY) announced the extension
of their oncology research collaboration designed to identify and validate
molecular targets implicated in cancer. As provided in the original agreement
established in July 2001 and effective July 2004, Exelixis and BMS
will extend their collaboration within the same field of research for an
additional three years, with an option for further extension of two years, with
the goal of increasing the total number and degree of validation of cancer
targets Exelixis will deliver to BMS. Exelixis and BMS will each maintain the
option to obtain exclusive worldwide rights to equal numbers of validated
targets arising from the collaboration.


 


Under the terms of the extended collaboration, Bristol-Myers Squibb
will provide Exelixis with an upfront payment of $3 million. Bristol-Myers
Squibb will also provide annual research funding, significant milestones on
cancer targets that progress through specified stages of validation,
significant milestones on compounds directed against any of these targets that
advance into specified stages of discovery and development, and royalties upon
commercialization of any compounds directed against targets emerging from the
collaboration. Funding and total milestones could reach $300 million assuming
successful development of multiple targets and compounds.


 


1

















 


{Quote from James Plamer,
Vice President, Oncology Drug Discovery, BMS}


 


“Our cancer collaboration with Bristol-Myers Squibb has been extremely
productive, cooperative and successful due to the combined efforts of our
respective research organizations and the strong support from our colleagues in
the BMS management group,” said George A. Scangos, Ph.D., president and chief
executive officer, Exelixis. “We believe that our collaboration exemplifies how
pharmaceutical and biotechnology companies can work together successfully to
exploit novel insights into cancer, share equally in the fruits of their
collaboration, and advance potentially new therapeutic approaches toward the
clinic. We are enthusiastic about the opportunity to build on our
collaboration’s successes and to working with BMS on this important endeavor.”


 


{BMS boilerplate and disclaimer}


 


Exelixis, Inc. (Nasdaq: EXEL) is a leading genomics-based drug
discovery company dedicated to the discovery and development of novel
therapeutics. The company is leveraging its fully integrated gene-to-drug
platform to fuel the growth of its proprietary drug pipeline.  Exelixis’ development pipeline includes:
XL119 which is anticipated to enter a Phase 3 trial as a potential treatment
for bile duct tumors; XL784, an anticancer compound currently in a Phase 1
safety study; XL647 and XL999, anticancer compounds that are potential IND
candidates; and multiple compounds in preclinical development. Exelixis has
established broad corporate alliances with major pharmaceutical and
biotechnology companies, including SmithKlineBeecham Corporation and
Bristol-Myers Squibb Company. The company has also established agricultural
research collaborations with Bayer CropScience, Dow AgroSciences and Renessen
LLC. Other partners include Merck & Co., Inc., Schering-Plough Research
Institute, Inc., Cytokinetics, Inc., Elan Pharmaceuticals, Inc. and Scios Inc. For
more information, please visit the company’s web site at www.exelixis.com.


 


This press release contains forward-looking statements,
including without limitation statements related to the extension of Exelixis’
oncology research collaboration with Bristol-Myers Squibb. Words such as
“believes,” “anticipates,” “plans,” “expects,” “intend,” “will” and similar
expressions are intended to identify forward-looking statements.  These forward-looking statements are based
upon Exelixis’ current expectations. 
Forward-looking statements involve risks and uncertainties.  Exelixis’ actual results and the timing of
events could differ materially from those anticipated in such forward-looking
statements as a result of many factors, including without limitation: Exelixis’
ability to successfully identify and validate additional molecular targets
implicated in cancer, in accordance with the renewed agreement, and Exelixis’
ability to achieve milestones and royalties derived from future Bristol-Myers
Squibb products developed against selected Exelixis targets under the
collaboration. These and other risk factors are discussed under “Risk Factors”
and elsewhere in our quarterly report on Form 10-Q for the quarter ended
September 30, 2003, annual report on Form 10-K for the year ended
December 31, 2002 and other filings with the


 


2

















 


Securities and Exchange Commission. We expressly disclaim
any obligation or undertaking to release publicly any updates or revisions to
any forward-looking statements contained herein to reflect any change in our
expectations with regard thereto or any change in events, conditions or
circumstances on which any such statements are based.


 


Exelixis and the
Exelixis logo are registered U.S. trademarks.


 


###


 


 












[ * ] = CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


3