**EXHIBIT10.87**

 

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BYBRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF1934, AS AMENDED.

 

AMENDMENT NO. 1 TOCOLLABORATION AND LICENSE AGREEMENT

This AMENDMENT NO. 1to COLLABORATION AND LICENSE AGREEMENT (this “Amendment”) dated as ofMarch 19, 2004 (the “Amendment Effective Date”), is entered into byand between, on the one hand, ABGENIX, INC., a Delaware corporation (“ABX”),having a place of business at 6701 Kaiser Drive, Fremont, California 94555,U.S.A., and, on the other hand, ASTRAZENECA UK LTD., a company incorporated in England underno. 3674842 whose registered office is at 15 Stanhope Gate, London, WIK 1LN,England (“AZ”).

RECITALS

A.            Theparties have entered into the Collaboration and License Agreement dated as ofOctober 15, 2003 (the “Agreement”).

B.            Theparties now desire to amend the Agreement to include the right to use XenoMouse®Lambda Animals (as defined in the Agreement) [Confidential Treatment Requested]with the Amendment No. 1 Antigen (as defined below) on the terms and conditionsset forth below.

NOW THEREFORE, inconsideration of the foregoing premises and the mutual covenants set forthbelow, and other good and valuable consideration, the receipt and sufficiencyof which are hereby acknowledged, the Parties, intending to be legally bound,agree as follows:

# 1.             Definitions.  All capitalized terms not defined in thisAmendment shall have the meaning set forth in the Agreement.

# 2.             Acknowledgements.  The parties acknowledge that pursuant toSection 4.18.2 of the Agreement:

## 2.1           AZhas requested to include under the scope of the Agreement the use of XenoMouseLambda Animals with respect to the antigen described on Exhibit A to thisAmendment (the “Amendment No. 1 Antigen”).

## 2.2           Subjectto the terms and conditions of this Amendment and the Agreement, ABX herebygrants to AZ non-exclusive sublicences under the following ABX In-Licensespursuant to which ABX Controls XenoMouse Lambda Animals as applicable toAntibodies that bind to and are directed against the Amendment No. 1 Antigen [Confidential Treatment Requested] :(a) that certain license agreement between ABX and the Medical ResearchCouncil, dated December 14, 1998 (as amended or restated from time to time)(“MRC II”), and (b) that certain license agreement between ABX andBabraham Bioscience Technologies Limited (“Babraham”) dated May 14, 2002(as amended or restated from time to time, the “Babraham Agreement”).  AZ acknowledges that ABX has provided to AZredacted copies of such ABX In-Licenses.

 

 

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## 2.3           AZ acknowledges and agrees that itshall be subject to the terms and conditions applicable to AZ as a sublicenseeunder the Babraham Agreement. Exhibit B to this Amendment describes such terms and conditions andcontains a calculation of the Lambda Payments (as defined in Section 3.1of this Amendment) payable by AZ to ABX by reason of the Babraham Agreement [Confidential Treatment Requested].

## 2.4           AZ acknowledges and agrees that itshall be subject to the terms and conditions applicable to AZ as a sublicenseeunder MRC II.  Exhibit C to thisAmendment describes such terms and conditions and contains a calculation of theLambda Payments payable by AZ to ABX by reason of MRC II.

# 3.             LambdaPayments.

## 3.1           Pursuant to Section 4.18.2 ofthe Agreement, and notwithstanding anything to the contrary in this Amendmentor the Agreement (including the representations and warranties, indemnificationobligations and financial obligations), AZ shall pay to ABX [Confidential Treatment Requested], whichshall be in addition to any other payments owing by AZ to ABX pursuant toSection 9 of the Agreement.

## 3.2           Within five (5) business days following the AmendmentEffective Date, AZ shall pay to ABX the first Lambda Payment [ConfidentialTreatment Requested]. AZ shall make each Lambda Payment to ABX atleast five (5) business days before such Lambda Payment is due to ABX’slicensors under the ABX In-Licenses referenced in Section 2.2 of thisAmendment.

## 3.3           Examples of calculations of LambdaPayments, including milestone amounts and royalty percentage rates, are setforth on Exhibit D to this Amendment.

# 4.             Amendmentsto the Agreement.

## 4.1           Section1.203 of the Agreement is amended and restated in its entirety as follows:

## 1.203       XenoMouse Animals” shallmean (a) except as expressly set forth in clause (b) below, those micethat are transgenic for the human heavy chain variable Ig loci that isdescribed in Mendez, et al., Nature Genetics 15: 146-156 (1997), and anyand all improved strains of such mice, and (b) for the limited purpose ofthe Amendment No. 1 Antigen (as defined in Amendment No. 1 to this Agreement)(i) those mice that are transgenic for the human heavy chain variable Igloci that is described in Mendez, et al., Nature Genetics 15: 146-156(1997), [ConfidentialTreatment Requested], and (iii) any and all improved strains ofany of the foregoing mice; in each case that are used by ABX or its Affiliatesin their business to generate antibodies for use in the Commercial Field.

# 5.             Miscellaneous.

## 5.1           ContinuingEffect.  This Amendment shall beeffective for all purposes as of the Amendment Effective Date.  Except as otherwise expressly modified bythis Amendment, the Agreement shall remain in full force and effect inaccordance with its terms.

 

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## 5.2           GoverningLaws.  This Amendment shall begoverned by, interpreted and construed in accordance with the laws of the Stateof New York, without regard to conflicts of law principles.

## 5.3           Counterparts.  This Amendment may be executed incounterparts, each of which shall be deemed to be an original and together shallbe deemed to be one and the same document.

IN WITNESSWHEREOF, the parties have caused this Amendment to be executed by theirrespective duly authorized officers as of the Amendment Effective Date.
|   | ABGENIX, INC.       |
|--------|---------------------|
|   |                |   |
|   | By:                 | /s/ Raymond M. Withy |
|   |                | (Signature) |
|   |                |   |
|   |                | Raymond M. Withy |
|   |                | (Printed Name) |
|   |                |   |
|   |                | President and  CEO |
|   |                | (Title) |
|   |                |   |
|   | ASTRAZENECA UK LTD. |
|   |                |   |
|   | By:                 | /s/ C.R.W. Petty |
|   |                | (Signature) |
|   |                |   |
|   |                | C.R.W. Petty |
|   |                | (Printed Name) |
|   |                |   |
|   |                | Authorised  Signatory |
|   |                | (Title) |

 

 

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EXHIBIT A

 

Amendment No. 1 Antigen

 

[Confidential TreatmentRequested]

 

 

 

 

 

 

 

 

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EXHIBIT B

 

BABRAHAM AGREEMENT

 

# 1.             Terms andConditions of the Babraham Agreement Applicable to AZ.

## 1.1           All sums due to Babraham pursuant tothis Amendment [ConfidentialTreatment Requested].

## 1.2           AZ shall indemnify and hold harmlessBabraham and Babraham’s officers, directors, employees and agents from andagainst any and all losses, liabilities, damages and expenses (includingreasonable attorneys’ fees and costs) incurred as a result of any third partyclaims, demands, actions or other proceedings to the extent arising from:

### (a)           any breach by AZ of the terms of thisAmendment; or

### (b)           any use, application or exploitationof any rights licensed under this Amendment, whether by AZ or its Affiliates(as defined below), except in each case due to the negligence or willfulmisconduct of Babraham.  As used in thisExhibit B, “Affiliates” shall mean any business entity controlling,controlled by or under common control with AZ. “Control” shall mean as to any entity effective ownership of at leastfifty percent (50%) of the voting capital, stock, voting partnership shares orcomparable owner equity in such entity.

## 1.3           AZ’s rights and obligations underthis Amendment with respect to the Babraham Agreement shall commence on theAmendment Effective Date and shall continue thereafter [Confidential Treatment Requested].  Upon expiration ofsuch period, the licenses granted under this Amendment shall continue [Confidential Treatment Requested].

## 1.4           Termination of AZ’s rights andobligations under this Amendment with respect to the Babraham Agreement shallnot affect the accrued rights of AZ, ABX or Babraham arising in any way out ofthis Amendment as of the date of such termination and in particular but withoutlimitation the right of either party to recover damages against the others, andall provisions of the Babraham Agreement which are expressed to survive the BabrahamAgreement shall remain in full force and effect.

## 1.5           Upon termination of the BabrahamAgreement, AZ’s rights and obligations under this Amendment with respect to theBabraham agreement shall be assigned to Babraham or terminated, at Babraham’soption.

# 2.             Calculation ofLambda Payments under Babraham Agreement.

## The Lambda Paymentspayable by AZ to ABX pursuant to Section 7.2.2 of the Babraham Agreement [Confidential Treatment Requested] that arebased on [ConfidentialTreatment Requested] that constitute “Licensing Income” (as definedin Section 7.2.2 of the Babraham Agreement), shall be calculated asfollows:

[Confidential TreatmentRequested]

 

 

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EXHIBIT C

 

MRC II

 

# 1.             Terms andConditions of MRC II Applicable to AZ.

## 1.1           In the event of termination of MRCII, the sublicense granted by ABX to AZ under this Amendment with respect toMRC II shall continue in effect if AZ provides the Medical Research Councilwith written notice of its agreement to be bound by all the terms of MRCII.  In such event, such sublicenseshall continue as if it was a license agreement directly between the MedicalResearch Council and AZ.

## 1.2           AZ shall indemnify, defend and holdharmless the Medical Research Council and its trustees, officers and employeesagainst all claims and expenses including reasonable legal expenses andreasonable attorneys’ fees arising out of the death of or injury to any personor persons or out of any damage to property and against any other claim, proceeding,demand, expense and liability of any kind whatsoever resulting from theproduction, manufacture, sale, use, lease, consumption or advertisement of theBiological Materials and Information (as defined in MRC II) of LicensedProducts (as defined in MRC II) by AZ.

## 1.3           Except to the extent that AZ isrequired under any laws or government regulations or by the rules of any stockexchange of any country, AZ shall not use the name of the Medical ResearchCouncil nor of any of its employees or officers or inventors or originators ofthe Property Rights (as defined in MRC II) nor any adaptation thereof in anyadvertising, promotional or sales literature without first obtaining the priorwritten consent of the Medical Research Council, which consent shall not beunreasonably withheld.

# 2.             Calculation ofLambda Payments under MRC II.

The Lambda Paymentspayable by AZ to ABX pursuant to MRC II shall equal [Confidential Treatment Requested].

 

 

 

 

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EXHIBIT D

 

LAMBDA PAYMENT EXAMPLES(1)

 
| Milestone                          |   | Amount AZ pays to ABX applicable to Non-Lambda  Antibodies |   | Amount AZ pays to ABX applicable to Lambda  Antibodies while MRC I(2) is still in effect |   | Amount AZ pays to ABX applicable to Lambda  Antibodies after MRC I has expired |
|------------------------------------|--------|------------------------------------------------------------|--------|------------------------------------------------------------------------------------------|--------|--------------------------------------------------------------------------------|
|                               |   |                                                       |   |                                                                                     |   |                                                                           |
| [Confidential Treatment Requested] |   | [Confidential Treatment Requested]                         |   | [Confidential Treatment Requested]                                                       |   | [Confidential Treatment Requested]                                             |

 

 
| Royalty Rate payable by AZ to ABX applicable to  Non-Lambda Antibodies |   | Royalty Rate payable by AZ to ABX applicable to  Lambda Antibodies while MRC I is still in effect |   | Royalty Rate payable by AZ to ABX applicable to  Lambda Antibodies after MRC I has expired |
|------------------------------------------------------------------------|--------|--------------------------------------------------------------------------------------------------------|--------|-------------------------------------------------------------------------------------------------|
|                                                                   |   |                                                                                                   |   |                                                                                            |
| [Confidential Treatment Requested]                                     |   | [Confidential Treatment Requested]                                                                     |   | [Confidential Treatment Requested]                                                              |

 

 

 

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(1)                  This table is purely for illustration purposes as theamounts and royalty rates on which the calculations set forth in the table arebased may change due to amendments to the Agreement.

 

(2)                  License Agreement dated March 29, 1994 by and amongMedical Research Council, Agricultural and Food Research Council Institute ofAnimal Physiology and Genetics Research of Babraham Hall, Marianne Bruggermannc/o Institute of Animal Physiology and Genetics Research, Babraham Hall, andCell Genesys, Inc (“MRC I”).

 

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