Exhibit 10.4


 


[ **** ] indicates confidential portions have been redacted and
submitted separately pursuant to confidentiality request with the Commission


 


CONFIDENTIAL


 


ASSIGNMENT AND LICENSE AGREEMENT


 


THIS ASSIGNMENT AND LICENSE AGREEMENT
(the “Agreement”) is made and
entered into effective as of April 6, 2004 (the “Effective Date”), by and between CELLDEX
THERAPEUTICS, INC., having principal offices at 519 Route 173 W, Bloomsbury,
New Jersey 08804 (“Celldex”),
MEDAREX, INC., having principal offices at 707 State Road, Princeton, New
Jersey 08540-1437 (“MI”), and
GENPHARM INTERNATIONAL, INC., a wholly-owned subsidiary of MI having principal
offices at 521 Cottonwood Drive, Milpitas, California 95035 (“GPI” and together with MI, “Medarex”). 
Celldex and Medarex each may be referred to herein individually as a “Party,” or collectively as the “Parties.”


 


WHEREAS, Medarex
owns or otherwise controls certain technology, including certain patents and
know-how, relating to the use of antibodies in connection with the research and
development of vaccines;


 


WHEREAS, Medarex
has determined that this technology and the associated business opportunities
are outside of Medarex’s core business and, accordingly, can best be exploited
through a separate corporate entity;


 


WHEREAS, Medarex
has caused Celldex to be incorporated for this purpose;


 


WHEREAS, Medarex
wishes to assign certain of the above-mentioned technology and certain
agreements and materials to Celldex and to grant certain licenses to Celldex
under certain other of the above-mentioned technology on the terms and
conditions set forth herein; and


 


WHEREAS, Celldex
wishes to have such technology, agreements and materials assigned to it and to
have the licenses granted to it by Medarex under such other technology on the
terms and conditions set forth herein;


 


NOW, THEREFORE, in
consideration of the foregoing premises and the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, do hereby agree as follows:


 


ARTICLE 1


 


DEFINITIONS


 


1.1           “Additional Mice” shall mean (a) the
mice developed by Kirin Brewery Company, Ltd. (“Kirin”) using certain transchromosomal technology and licensed
to Medarex pursuant to the Collaboration and License Agreement between Medarex
and Kirin, dated September 4, 2002 (the “Kirin
Agreement”), and (b) the mice developed through the 


 


 

















 


crossbreeding of the
HuMAb Mice with the mice described in clause (a) of this Section 1.1
and licensed to Medarex pursuant to the Kirin Agreement.


 


1.2           “Affiliate” shall mean any Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with another Person.  For purposes of this definition only, “control”
and, with correlative meanings, the terms “controlled by” and “under common
control with” shall mean (a) the possession, directly or indirectly, of
the power to direct the management or policies of a Person, whether through the
ownership of voting securities or by contract relating to voting rights or
corporate governance, or (b) the ownership, directly or indirectly, of at
least fifty percent (50%) of the voting securities or other ownership interest
of a Person.  For purposes of this
Agreement, neither Medarex, Celldex, nor Genmab A/S shall be deemed to be an
Affiliate of the other(s); but for avoidance of doubt, MI and GPI shall be
deemed to be Affiliates of each other.


 


1.3           “Antibody Material” shall mean, with respect
to a particular Licensed Antibody or Anti-Mannose Receptor HuMAb Antibody, (a) the
nucleic acids (including DNA, RNA, and complementary and reverse complementary
nucleic acids thereto, whether intact or a fragment) that code specifically for
such Licensed Antibody or Anti-Mannose Receptor HuMAb Antibody (or active
fragments thereof) and do not code for multiple antibodies, or (b) a host
cell (other than a host cell obtained directly from the HuMAb Mice, or parts of
such mice) into which the nucleic acids described in clause (a) of this Section 1.3
are introduced or are otherwise present, which cell is capable of expressing
such Licensed Antibody or Anti-Mannose Receptor HuMAb Antibody.


 


1.4           “Antibody Targeting Technology” shall mean (a) those
Patents set forth on Appendix B attached hereto (the “Antibody Targeting Patents”), together with
any Patents arising during the Term covering Antibody Targeting Know-How, and (b) all
Know-How Controlled by Medarex as of the Effective Date related primarily to
the Antibody Targeting Technology Field or necessary or reasonably useful to
utilize the Antibody Targeting Patents existing as of the Effective Date (the “Antibody Targeting Know-How”).


 


1.5           “Antibody Targeting Technology Field” shall
mean the use of an antibody, or fragment thereof, whereby the antibody or
fragment serves as a targeting means with respect to an Antigen-Presenting Cell
for the purpose of modulating an immune response in any of the following
manners: (a) an antibody or fragment chemically attached or genetically
fused to an antigen (including an antigen that is an antibody, or fragment
thereof, that encodes an idiotype antigen), whereby the antibody, or fragment
thereof, serves as a targeting means for delivering such antigen to an Antigen-Presenting
Cell for the purpose of eliciting an immune response, (b) an antibody or
fragment chemically attached or genetically fused to a toxin or radionuclide,
whereby the antibody, or fragment thereof, serves as a targeting means for
delivering such toxin or radionuclide to an Antigen-Presenting Cell for the
purpose of decreasing, down-regulating or eliminating the activity of such
Antigen-Presenting Cell, (c) an antibody or fragment chemically attached
or genetically fused to a cytokine, adjuvant, or other immuno-modulatory
compound, whereby the antibody, or fragment thereof, serves as a targeting
means for delivering such compound to an Antigen-Presenting Cell for the
purpose of modulating the activity of such Antigen-Presenting Cell, and (d) an
antibody, or fragment thereof, alone, whereby the antibody or fragment binds to
a particular antigen on the surface of an Antigen-Presenting Cell and 


 


2

















 


through such binding
modulates the activity of such Antigen-Presenting Cell.  For the avoidance of doubt, “Antibody
Targeting Technology Field” shall not include the use of a first antibody, or
fragment thereof, chemically attached or genetically fused to a second
antibody, or fragment thereof (except for a second antibody, or fragment
thereof, that encodes an idiotype antigen), whereby the first antibody, or
fragment thereof, serves as a targeting antibody to an Antigen-Presenting Cell
and the second antibody, or fragment thereof, attaches to an antigen, for the
purpose of eliciting an immune response. 
Further, with respect to Licensed Products comprising the Murine
Anti-CD64 Antibody(ies), “Antibody Targeting Technology Field” shall not
include Licensed Products for diagnostic use, unless so agreed by the Parties
in writing following request by Celldex to obtain such rights and Medarex’s
confirmation that no Third Party retains blocking rights pursuant to an
agreement with Medarex in effect as of the time of such request.


 


1.6           “Antigen-Presenting Cell” shall mean
professional antigen-presenting cells that (i) present antigens in the
groove of major histocompatibility complex molecules to T cells and (ii) have
necessary co-stimulatory molecules to induce T cell activation; provided,
however, that for the purpose of clauses (b) and (d) of Section 1.5,
Antigen Presenting Cells shall in no event include B lymphocytes.  For the avoidance of doubt, Celldex may not
engage in the uses of an antibody, or fragment thereto, described in such
clauses (b) and (d) with respect to B lymphocytes.


 


1.7           “Anti-Mannose Product” shall mean any
pharmaceutical composition or formulation incorporating an Anti-Mannose
Receptor HuMAb Antibody.


 


1.8           “Anti-Mannose Receptor HuMAb Antibody” shall
mean (a) the fully human antibody known as [ **** ], (b) any fully
human antibody(ies) raised in those HuMAb Mice set forth under the heading [
**** ] on Appendix D and that are [ **** ] and included herein pursuant to Section 2.2.2,
(c) any Research Antibody that is [ **** ] and included herein pursuant to
Section 3.3.1.2, and (d) any Improvements to any of the foregoing.


 


1.9           “Assigned Contracts” shall have the meaning
set forth in Section 2.1.7.


 


1.10         “Assumed Liabilities” shall have the meaning
set forth in Section 2.3.1.


 


1.11         “Biological Materials” shall mean those
tissues, cells, cell lines, organisms, blood samples, genetic material, and
other biological substances and materials (a) set forth in Appendix C
attached hereto, with respect to the Licensed Antibodies, the Anti-Mannose
Receptor HuMAb Antibody and the Research Antibodies, including the Antibody
Materials with respect thereto, in each case that are within Medarex’s
possession or control as of the Effective Date or (b) identified by
Celldex and notified to Medarex pursuant to Section 2.7 and mutually
agreed by the Parties, pursuant to such Section 2.7, for inclusion in
Biological Materials.  For the avoidance
of doubt, to the extent that any Biological Materials constitute Mice Materials
for which the transfer by Medarex is prohibited by the Cross License Agreement,
usage thereof by Celldex shall be as provided in Section 2.4.


 


1.12         “Calendar Quarter” shall mean each
three-month period commencing January 1, April 1, July 1 or October 1
during the Term.


 


3

















 


1.13         “Confidential
Information” shall mean, subject to the provisions of Article 5
hereof, any information, whether in oral, written, graphic, electronic or
tangible form, disclosed by one Party to the other Party hereunder.


 


1.14         “Control” shall mean, with respect to any
Know-How, Patent or other intellectual property right, possession of the right,
and whether by ownership, license or otherwise, to assign, or grant a license,
sublicense or other right to or under, such Know-How, Patent or right as
provided for herein without violating the terms of any agreement or other
arrangement with any Third Party.


 


1.15         “Cross License Agreement” shall mean that
certain Cross License Agreement dated March 26, 1997 by and between, on
the one hand, GPI and, on the other hand, Cell Genesys, Inc., Abgenix, Inc.,
Xenotech, L.P.  and Japan Tobacco Inc.


 


1.16         “First Commercial Sale” shall mean, with
respect to each Royalty-Bearing Product in each country, the first bona fide
commercial sale by Celldex, its Affiliates or Sublicensees of such
Royalty-Bearing Product following marketing approval in such country; provided,
that where such first commercial sale has occurred in a country for which
government pricing or government reimbursement approval is needed for widespread
commercial sale (for clarification, the Parties acknowledge that no such
approval is currently required in the United States), then such sales shall not
be deemed a First Commercial Sale until such pricing or reimbursement approval
has been obtained.


 


1.17         “GAAP”. shall mean
U.S. generally accepted accounting principles, consistently applied.


 


1.18         “HuMAb Mouse®” shall mean any of Medarex’s
immunizable transgenic mice containing unrearranged human immunoglobulin heavy
and light chain transgenes, each inserted into mouse chromosomes, but excluding
the Additional Mice. “HuMAb Mice®” shall mean more than one HuMAb Mouse.


 


1.19         “HuMAb Technology” shall mean (a) all
Patents Controlled by Medarex, whether existing as of the Effective Date or
arising during the Term, that claim an invention which is necessary or
reasonably useful for the use of the HuMAb Mice to create antibodies in order
to develop, make, have made, import, have imported, use, offer for sale and
sell a Licensed Antibody or Anti-Mannose Receptor HuMAb Antibody or Licensed
Product or Anti-Mannose Product, including any Patents constituting any
patented HuMAb Know-How (the “HuMAb Patents”), and (b) any Know-How
Controlled by Medarex necessary or reasonably useful to use the HuMAb Mice or
for the exercise of the HuMAb Patents existing as of the Effective Date (the “HuMAb
Know-How”).  For the avoidance of doubt, “HuMAb
Technology” does not include: (w) any claims within Patents of Medarex
that claim processes, compositions or technology to facilitate the
manufacturing, purification, evaluation, characterization, stability
assessment, vialing and distribution, and release of an antibody product; (x) any
claims within Patents of Medarex that claim (i) a specific composition of
matter of a specific antigen, (ii) an amino acid sequence of a specific
antigen or (iii) a polynucleotide sequence of a specific antigen; (y) any
claims within Patents of Medarex that claim (i) a specific composition of
matter of a specific antibody other than a Licensed Antibody or Anti-Mannose
Receptor HuMAb Antibody, (ii) an 


 


4

















 


amino acid sequence of a
specific antibody other than a Licensed Antibody or Anti-Mannose Receptor HuMAb
Antibody or (iii) a polynucleotide sequence encoding a specific antibody
other than a Licensed Antibody or Anti-Mannose Receptor HuMAb Antibody; and (z) any
Exploitation of (x) or (y).  For
purposes of this Section 1.19, “Exploitation” shall mean to make, have
made, import, use, sell, offer for sale, or otherwise dispose of, including all
discovery research, development, registration, modification, enhancement,
improvement, manufacture, storage, formulation, exportation, transportation,
distribution, promotion and marketing activities related thereto.


 


1.20         “Humanized Anti-CD64 Antibody” shall mean
that certain humanized antibody currently covered by [ **** ] and identified as
H22 and any Improvements thereto made by or on behalf of Celldex or its
Affiliates or Sublicensees.


 


1.21         “Hybridoma Cell Lines” shall mean (a) those
cell lines set forth on Appendix D attached hereto, (b) each other cell
line related to any Anti-Mannose Receptor HuMAb Antibody assigned to Celldex
hereunder and (c) each other cell line related to any Research Antibody
licensed to Celldex hereunder.


 


1.22         “Improvement” shall mean any modification
to an antibody, compound, product or technology, including any antibody,
antibody fragment, peptide mimetic or other composition of matter that is
derived from an antibody or information relating to such antibody (including
its sequence, structure or antigen interaction), or any discovery, device,
process or formulation related to such antibody, compound, product or
technology, whether or not patented or patentable, including any enhancement in
the efficiency, operation, manufacture, ingredients, preparation, presentation,
formulation, means of delivery, packaging or dosage of an antibody, compound,
product or technology, any discovery or development of any new or expanded
indications or applications for an antibody, compound, product or technology,
or any discovery or development that improves the stability, safety or efficacy
of an antibody, compound, product or technology.


 


1.23         “Know-How” shall mean all confidential,
proprietary and unpatented technical, biological, chemical, pharmacological,
toxicological, clinical, assay, scientific and other know-how and information,
trade secrets, knowledge, technology, means, methods, processes, practices,
formulae, instructions, skills, techniques, procedures, experiences, ideas,
technical assistance, designs, drawings, assembly procedures, computer
programs, apparatuses, specifications, data, results and other materials,
including high-throughput screening, gene expression, genomics, proteomics and other
drug discovery and development technology, pre-clinical and clinical trial
results, manufacturing procedures, test procedures and purification and
isolation techniques, whether to the foregoing or otherwise, and other
discoveries, developments, inventions and other intellectual property, in each
case whether in written, electronic or any other form now known or hereafter
developed, and including any Improvements to the foregoing.


 


1.24         “Liabilities” shall mean any and all
liabilities of any nature, whether known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or
due or to become due.


 


5

















 


1.25         “Licensed Antibody” shall mean a Licensed
Royalty-Bearing Antibody or a Licensed Royalty-Free Antibody. A “Licensed
Royalty-Bearing Antibody” shall mean any Research Antibody (other than any
Research Antibody directed against a mannose receptor target) determined to be
available pursuant to Section 3.3.1.3. A “Licensed Royalty-Free Antibody”
shall mean any Murine Anti-CD64 Antibody and any Humanized Anti-CD64 Antibody.


 


1.26         “Licensed Product” shall mean a Licensed
Royalty-Bearing Product or a Licensed Royalty-Free Product. “Licensed
Royalty-Bearing Product” shall mean any pharmaceutical composition or
formulation incorporating one or more Licensed Royalty-Bearing Antibodies. “Licensed
Royalty-Free Product” shall mean any pharmaceutical composition or formulation
incorporating one or more Licensed Royalty-Free Antibodies.


 


1.27         “MDX-1307” shall mean the antibody-antigen
fusion protein comprised of the Anti-Mannose Receptor HuMAb Antibody (B11)
coupled by recombinant DNA technology via its heavy chain to hCG-/3 for which
Medarex has filed an Investigational New Drug Application.


 


1.28         “Medarex Technology” shall mean (a) those
Patents set forth on Appendix A attached hereto, together with any Patents
arising during the Term covering Medarex Know-How (“Medarex Patents”), and (b) any
Know-How Controlled by Medarex as of the Effective Date that is necessary or
reasonably useful to utilize the Medarex Patents or to produce the Licensed
Products (“Medarex Know-How”).


 


1.29         “Mice Materials” shall mean the HuMAb Mice
and the Additional Mice, any parts or derivatives of such mice, including
Hybridoma Cell Lines, hybridomas, cells, genetic material, including nucleotide
sequences (e.g., DNA, RNA, and complementary and reverse complementary
nucleotide sequences thereto, whether coding or non-coding) with respect to the
expression of an antibody or fragment thereof, and any replicates or
modifications thereof or Improvements thereto (e.g., additions, deletions or
substitutions of nucleotides therein), or other biological materials derived
directly or indirectly from the HuMAb Mice or the Additional Mice, but
excluding any Licensed Antibodies and Anti-Mannose Receptor HuMAb Antibodies,
and Antibody Materials related thereto.


 


1.30         “Murine Anti-CD64 Antibody” shall mean
those certain mouse antibodies currently covered by [ **** ] and identified as
M22, M32.2 and 197, and any Improvements thereto made by or on behalf of
Celldex or its Affiliates or Sublicensees.


 


1.31         “Net Sales” shall mean the following,
calculated in accordance with GAAP: [ **** ]


 


6

















 


1.32         “Patent” shall mean all United States and
foreign patents and patent applications, including any continuations,
continuations-in-part, -divisions, -provisionals, substitutions or the like,
any patent issued with respect to any such patent applications, any reissue,
reexamination, renewal, extension or the like (including any supplementary
protection certificate) of any such patent, and any confirmation patent or
registration patent or patent of addition based on any such patent, including,
as applicable, portions thereof or individual claims therein.


 


1.33         “Person” shall mean an individual, sole
proprietorship, partnership, limited partnership, limited liability
partnership, corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture or other
similar entity or organization, including a government or political
subdivision, depait.ment or agency of a government.


 


1.34         “Research Antibodies” shall mean (a) fully
human antibody(ies) raised in the HuMAb Mice [ **** ] and (b) fully human
antibody(ies) raised in those HuMAb Mice set forth [ **** ] on Appendix D and
that are [ **** ] and included herein pursuant to Section 3.3.1.3 and (c) any
Improvements to any of the foregoing.


 


1.35         “Research Patent” shall mean that certain
Patent set forth on Appendix A [ **** ]


 


1.36         “Royalty-Bearing Product” shall mean a
Licensed Royalty-Bearing Product or an Anti-Mannose Product.


 


1.37         “Sublicensee” shall mean a Third Party to
whom Celldex or its Affiliate has granted a sublicense to develop, make, have
made, import, use, sell, offer for sale or otherwise exploit Licensed Products.


 


1.38         “Third Party” shall mean any Person other
than Medarex, Celldex or their respective Affiliates.


 


1.39         “Valid Claim” shall mean any claim of an
issued patent included in a granted and unexpired Medarex Patent, Antibody
Targeting Patent or HuMAb Patent that (a) has not been revoked or held
unenforceable or invalid by a decision of a court or other governmental agency
of competent jurisdiction, which decision is unappealable or unappealed within
the time allowed for appeal, and (b) has not been abandoned, disclaimed,
denied or admitted to be invalid or unenforceable through reissue or disclaimer
or otherwise.


 


ARTICLE 2


 


ASSIGNMENT


 


2.1          Medarex Assignment. Medarex hereby irrevocably, perpetually
and forever assigns and conveys to Ceildex, and Celldex hereby accepts and
assumes, Medarex’s (and its Affiliates’) entire right, title and interest in
and to each of the following (subject to additions or deletions pursuant to Section 2.7,
the “Assigned Assets”):


 


7

















 


2.1.1       Antibody Targeting
Patents;


 


2.1.2       Antibody Targeting
Know-How;


 


2.1.3       Anti-Mannose Receptor
HuMAb Antibodies;


 


2.1.4       subject to Section 2.2.3,
the Investigational New Drug Application # 11,508 and related governmental
filings, and the right to make any future or foreign related filing on MDX-1307
(the “MDX-1307 LND”);


 


2.1.5       all quantities of
Biological Materials, including those in the possession or control of
counterparties to Assigned Contracts;


 


2.1.6       all clinical
inventories of MDX-1307 in the possession or control of Medarex as of the
Effective Date; and


 


2.1.7       the agreements set
forth on Schedule 2.1.7 (collectively, the “Assigned Contracts”), true and correct copies of which have
previously been provided to Celldex.


 


2.2          Cooperation.


 


2.2.1       Consents. Notwithstanding anything to the contrary contained
in this Agreement, if the assignment and conveyance or attempted assignment and
conveyance to Celldex of any of the Assigned Assets requires any
authorizations, approvals, consents or waivers from a Third Party or
governmental or regulatory authority and such authorizations, approvals,
consents or waivers shall not have been obtained prior to the Effective Date,
then Medarex shall take such reasonable actions as are reasonably necessary to
obtain such authorizations, approvals, consents or waivers as promptly as
practicable following the Effective Date and to provide to Celldex, pending the
receipt thereof, the benefit of such Assigned Assets, as the case may be;
provided, that Celldex shall cooperate with Medarex as reasonably requested by
Medarex to assist in such efforts to obtain such authorizations, approvals,
consents or waivers.  With respect to any
Assigned Contracts, Medarex shall not be required to pay any consideration not
provided for in such Assigned Contract to obtain such authorization, approval,
consent or waiver, and the Parties agree that Medarex’s obligation pursuant to
this Section 2.2.1 to take “such reasonable actions as are reasonably
necessary” shall not otherwise be deemed to require any payment of money or
other consideration by Medarex to any Third Party.  To the extent that Ceildex is provided the
benefits pursuant to this Section 2.2.1 of any Assigned Contract, Celldex
shall (x) perform for the benefit of the Third Parties thereto the
obligations of Medarex or any Affiliate of Medarex thereunder, including any
payments to be made thereunder and (y) shall satisfy any related
obligations and Liabilities with respect to such Assigned.  Contract that, but for the lack of an
authorization, approval, consent or waiver to assign such obligations or
Liabilities to Celldex, would be Assumed Liabilities (as defined in Section 2.3.1
below).  If authorization, approval,
consent or waiver for the assignment or conveyance of any such asset not
assigned or conveyed at the Effective Date is subsequently obtained, Medarex
shall assign and convey such asset to Celldex at no additional cost to Celldex.


 


2.2.2       Identification of Anti-Mannose Receptor HuMAb Antibodies (other than B11).  The Parties further acknowledge that work is
ongoing as of the date hereof in respect 


 


8

















 


of the Anti-Mannose Receptor HuMAb Antibodies.  As such, the Parties agree that, in respect
of any fully human antibody(ies) raised in the HuMAb Mice against the mannose
receptor antigen that have been produced [ **** ], Celldex may, following the
Effective Date, [ **** ].  Upon such [
**** ] each such antibody shall be deemed an Anti-Mannose Receptor HuMAb
Antibody.


 


2.2.3       Transfer of IND. 
Medarex and Celldex shall cooperate to make all required regulatory
filings to transfer the MDX-1307 IND to Celldex.  Such cooperation shall include agreement in
respect of the timing of such transfer, it being acknowledged that, as of the
Effective Date, Celldex may not be in a position to assume the management of
the MDX-1307 IND.  Until such time as the
MDX-1307 IND is transferred to Celldex, Medarex shall hold the MDX-1307 IND in
trust for Celldex, and Celldex and Medarex may agree that Medarex perform
certain regulatory responsibilities relating to the MDX-1307 iN) under that
certain Master Services Agreement being executed by the Parties
contemporaneously herewith.


 


2.3          Assumed Liabilities,
Retained Liabilities and Taxes.


 


2.3.1       Assumed Liabilities; Retained Liabilities.  Celldex shall, and does hereby
agree to, assume, satisfy, perform, pay and discharge (a) all Liabilities
and obligations that Celldex has expressly assumed or agreed to assume or
perform under this Agreement, (b) all Liabilities and obligations under or
pursuant to the Assigned Contracts attributable to the exercise of rights
thereunder by Celldex after the Effective Date, and (c) all Liabilities
and obligations that arise out of or are related to the use or ownership of
Biological Materials by Celldex after the Effective Date (collectively, the “Assumed Liabilities”).  All Liabilities and obligations (x) under
or pursuant to the Assigned Contracts relating to periods prior to the
Effective Date or (y) relating to the use or ownership of Biological
Materials by Medarex prior to the Effective Date shall be retained by Medarex
(collectively, the “Retained Liabilities”).


 


2.3.2       Taxes.  Celldex shall be
solely responsible for all sales, use, transfer, value added, gross receipts
and other similar taxes, if any, arising out of the Assumed Liabilities.  Medarex shall be solely responsible for all
sales, use, transfer, value added, gross receipts and other similar taxes, if
any, arising out of the Retained Liabilities. 
The Parties shall share equally all sales, use, transfer, value added,
gross receipts and other similar taxes, if any, arising out of the assignment
and conveyance by Medarex and its Affiliates of the Assigned Assets to Celldex
pursuant to this Agreement; it being acknowledged and specifically agreed,
however, that Celldex shall have no responsibility for, and Medarex shall be solely
responsible for, any tax payable on any income or gain of Medarex or its
Affiliates arising from the assignment and conveyance of the Assigned Assets.


 


2.4          Transfer of Existing Quantities of Biological Materials.  Within ten (10) business days
after written notice by Celldex to Medarex that Celldex has obtained
appropriate facilities and can take possession of the Biological Materials
(such written notice to be provided by Celldex to Medarex not more than one
hundred eighty (180) days after the Effective Date, with consent to any request
by Celldex for an extension of such 180-day time period not to be unreasonably
withheld by Medarex, provided that Celldex shall not request any extensions for
a total of longer than two (2) years after the Effective Date), Medarex
shall provide to Celldex all quantities of Biological Materials identified as
of the Effective Date; provided, that physical possession of those quantities
of the Humanized Anti-CD64 Antibody that have been provided to 


 


9

















 


Third Parties pursuant to certain of the
Assigned Contracts shall remain with such Third Parties; To the extent that any
Biological Materials constitute Mice Materials for which the transfer of title
by Medarex is prohibited by the Cross License Agreement, Medarex shall retain
ownership but provide to Celldex full and complete access thereto and usage
thereof.


 


2.5          Information Disclosure
and Document Transfer.


 


2.5.1       Within ten (10) business
days after the Effective Date, Celldex shall provide to Medarex a schedule, to
be attached hereto as Schedule 2.5.1, of the laboratory notebooks,
reports and other written materials relating solely to any of the Antibody
Targeting Technology, the Anti-Mannose Receptor HuMAb Antibodies, the Biological
Materials and/or the Licensed Antibodies that Celldex wishes to obtain complete
copies of from Medarex.  Medarex shall
consider the contents of such Schedule 2.5.1 in good faith and if
Medarex agrees that the contents of such schedule do relate solely to the
aforementioned materials, Medarex shall, without additional compensation and at
Medarex’s sole expense, deliver to Celldex copies of such materials.  In the event that Medarex does not agree with
respect to any of the items on such Schedule 2.5.1, Medarex shall so
notify Celldex and the Parties shall discuss in good faith an appropriate
resolution to such disagreement. 
Notwithstanding the foregoing, Medarex agrees that where a dispute is as
to whether a requested item relates “solely” to the aforementioned materials,
Medarex shall be entitled to withhold during such good faith negotiations only
those materials the relationship of which are in dispute.  Where the Parties are not able to agree, the
provisions of Section 10.4 shall apply.


 


2.5.2       Within ten (10) business
days after the Effective Date, Celldex shall provide to Medarex a schedule, to
be attached hereto as Schedule 2.5.2, of the laboratory notebooks,
reports and other written materials relating to both (x) any of the
Antibody Targeting Technology, the Anti-Mannose Receptor HuMAb Antibodies, the
Biological Materials and/or the Licensed Antibodies, and (y) any other
Medarex projects.  Medarex shall consider
the contents of such Schedule 2.5.2 in good faith and if Medarex agrees
that the contents of such schedule do relate to any of the Antibody Targeting
Technology, the Anti-Mannose Receptor HuMAb Antibodies, the Biological
Materials and/or the Licensed Antibodies, Medarex shall, without additional
compensation and at Medarex’s sole expense, deliver to Celldex copies of such
materials in redacted form.  In the event
that Medarex does not agree with respect to any of the items on such Schedule
2.5.2, Medarex shall so notify Celldex and the Parties shall discuss in
good faith an appropriate resolution to such disagreement.  Where the Parties are not able to agree, the
provisions of Section 10.4 shall apply.


 


2.5.3       Medarex shall provide
Celldex with access, during normal business hours, on each day of the ten
(10)-day periods described in Sections 2.5.1 and 2.5.2, to such of the offices
and records of Medarex and its Affiliates as may be reasonably necessary to
permit Celldex to prepare Schedule 2.5.1 and Schedule 2.5.2.


 


2.5.4       Medarex shall maintain
the original unredacted versions of all of the laboratory notebooks and other
written materials set forth on Schedule 2.5.1 and Schedule 2.5.2
in secure storage either at the Medarex facility or another secure site until
the third anniversary of the Effective Date; provided, that, in the case of the
foregoing Sections 2.5.1 and 2.5.2, if after the third anniversary Medarex does
not wish to maintain secure storage of such original 


 


10

















 


laboratory notebooks or other written materials, then it shall so notify
Celldex, and Celldex may (but shall not be obligated to) request that Medarex,
at Medarex’s choice and at Celldex’s cost, either (x) maintain such
original laboratory notebooks or other written materials in such secure storage
facilities or (y) transfer such original laboratory notebooks or other
written materials to Celldex.  In the
event that Celldex provides Medarex with written notice that it requires copies
of any redacted portion of any original laboratory notebooks or other written
materials held by Medarex for purposes of Patent-related activities, including,
Patent prosecution, maintenance, enforcement, conduct of interferences or
defense with respect to the Antibody Targeting Patents, or other legal
activities, Medarex will make such redacted portion available for inspection
for the sole purpose for which such materials are requested; provided,
that (A) the inspection is an in camera inspection by a judge, government
official or independent Third Party, or is pursuant to an appropriate
protective order or confidentiality agreement governing the confidentiality of
such materials, in each case which, in Medarex’s sole opinion and discretion,
would not impair Medarex’s rights in the confidential information contained
therein that is unrelated to the any of the Antibody Targeting Technology, the
Anti-Mannose Receptor HuMAb Antibodies, the Biological Materials and/or the
Licensed Antibodies, and (B) such inspection be on such other terms so as
not to violate the terms of any agreement between Medarex and a Third Party.


 


2.5.5       The Parties acknowledge
and agree that the materials provided to Celldex pursuant to this Section 2.5
are provided by Medarex “as is” and that Medarex makes no representations or
warranties of any kind, either express or implied, with respect to such
materials including warranties of merchantability or fitness for a particular
purpose, or that the use of such materials will not infringe any Patent,
copyright, trademark or other proprietary’ rights; provided, that the
foregoing shall in no way limit Medarex’s representations and warranties set
forth in Section 9.3.


 


2.6          Technical Assistance. 
Medarex shall cooperate with any and all reasonable requests for
assistance from Celldex regarding the materials, information and documents
transferred to Celldex pursuant to Sections 2.2.3, 2.4 and 2.5 for two (2) years
following the Effective Date. Celldex shall pay Medarex for such cooperation
and activities with respect thereto at the hourly rate (including a reasonable
allocation for payroll taxes, health insurance, and other standard fringe
benefits) of the Medarex employee performing such activities plus an additional
ten percent (10%) surcharge with respect to such hourly rate.  Such cooperation shall include making Medarex’s
employees available upon reasonable notice during normal business hours at
Medarex’s place of business or other mutually agreed location to consult with
Celldex on issues arising with respect to such materials, information and
documents.  Medarex will use its
reasonable efforts to arrange for consultants and other scientific staff to be
available to consult with Celldex at such consultants’ then current hourly
rates, to be paid by Celldex.


 


2.7          Further Assurances with Respect to the Celldex Focus Area.  The Parties agree that, as of the
Effective Date, Celldex is focused on the research, development and
commercialization of (i) therapeutic vaccines that modulate a patient’s
natural immune response to tumor or disease related proteins, by delivering
such proteins directly to dendritic cells or macrophages and (ii) immunomodulatory
products that modulate the activities of dendritic cells and macrophages for
the treatment of autoimmune diseases, infectious diseases or cancer (the “Celldex Focus Area”).  The Parties acknowledge that this Agreement,
including the list and details of the Assigned Assets and the Schedules hereto,
is a good faith effort by the Parties 


 


11

















 


under the circumstances to identify, as of
the Effective Date, all items and rights to be assigned or licensed to Celldex
by Medarex hereunder with respect to the Celldex Focus Area, but that such
effort may be incomplete or may be over-inclusive or under-inclusive with
respect to such assignments and licenses. 
In the event that, at any time and from time to time during the
twenty-four (24) month period after the Effective Date, (a) Celldex in
good faith identifies additional items (including Biological Materials) or
rights within the Celldex Focus Area that were owned or controlled by Medarex
as of the Effective Date and that Celldex believes should have been assigned,
licensed or physically transferred to Celldex by Medarex pursuant to this
Agreement but which were not so assigned, licensed or physically transferred,
or (b) Medarex determines in good faith that it requires items or rights
outside the Celldex Focus Area, which items or rights were assigned,
exclusively licensed or physically transferred (and, in the case of physical
transfer, no original or copy remains with Medarex from which Medarex can
produce duplicates) to Celldex pursuant to this Agreement, then, in the case of
either (a) or (b), the applicable Party shall notify the other Party in
writing with respect to the relevant items or rights, providing in such notice
a detailed explanation and the requested resolution with respect to such items
or rights.  Thereafter, the Parties shall
negotiate in good faith an appropriate outcome with respect to the identified
items or rights; provided, that in any event any return or grant back to
Medarex by Celldex must first be approved by Celidex’s Conflict of Interest
Committee (or such other committee as is comprised solely of independent
directors); and provided, further, that in the event that the Parties are unable
to agree upon such appropriate outcome, then the non-requesting Party shall
have the right to make the final determination with respect to the resolution
of such request.  For avoidance of doubt,
the definition and use of the term “Celldex Focus Area” is strictly for
purposes of this Section 2.7 and shall not be deemed to limit in any way
any grant hereunder or any ability of Celldex to engage in its business after
the Effective Date.


 


ARTICLE 3


 


LICENSES TO CELLDEX; RETAINED RIGHTS.


 


3.1          Licensed Products.


 


3.1.1       Subject to the terms
and conditions of this Agreement, Medarex hereby grants to Celldex an
exclusive, worldwide, royalty-free (with respect to Medarex) license, with the
right to sublicense as provided in Section 3.8.1, under the Medarex
Technology to research, develop, make, have made, use, sell, offer for sale and
import Licensed Royalty-Free Products solely in the Antibody Targeting
Technology Field.  The Parties
acknowledge and agree that (i) the license granted pursuant to this Section 3.1.1
is granted solely under the Medarex Technology and (ii) Celldex has sole
responsibility to obtain from Third Parties any rights that it may require with
respect to the Patents and other intellectual property that covers the Licensed
Royalty-Free Antibodies and the process by which such Licensed Royalty-Free
Antibodies were created.


 


3.1.2       Subject to the terms
and conditions of this Agreement, Medarex hereby grants to Celldex an
exclusive, worldwide, royalty-bearing (as set forth in Article 4) license,
with the right to sublicense as provided in Section 3.8.1, under the HuMAb
Technology and the Medarex Technology to research, develop, make, have made,
use, sell, offer for sale and import 


 


12

















 


(a) Licensed Royalty-Bearing Products solely in the Antibody
Targeting Technology Field and (b) Anti-Mannose Products.


 


3.2          Hybridoma Cell Lines;
Research License.


 


3.2.1       Medarex hereby grants
to Celldex an exclusive, worldwide, royalty-free license, with the right to
sublicense as provided in Section 3.8.1, under the HuMAb Technology to
research, make, have made, transfer physical possession of (but not to sell,
lease, offer to sell or lease, or otherwise transfer title to) the Hybridoma
Cell Lines.


 


3.2.2       Medarex hereby grants
to Celldex a non-exclusive, worldwide, royalty-free license, with the right to
sublicense as provided in Section 3.8.1, under the Research Patent to
conduct research.


 


3.3          Research Antibodies.


 


3.3.1.1       License.  Subject to the
terms and conditions of this Agreement, Medarex hereby grants to Celldex an
exclusive, worldwide, royalty-free Iicense, without the right to sublicense,
under the HuMAb Technology and the Medarex Technology to use the Research
Antibodies for the sole purpose of determining the antigen with respect to
which each Research Antibody was raised. 
The process by which Celldex will make such determination shall be as
set forth on Appendix E.


 


3.3.1.2       Mannose Antigen Determination.  In
the event that Celldex determines pursuant to the process set forth on Appendix
E that the antigen against which a Research Antibody was raised is the
mannose receptor antigen, such antibody shall no longer be deemed a Research
Antibody, but, subject to Section 3.4, shall be deemed an Anti-Mannose
Receptor Antibody.


 


3.3.1.3       Other Antigen
Determination.  In the event that Celldex
determines pursuant to the process set forth on Appendix E the antigen
against which a Research Antibody was raised (each, a “Research Antibody Target”) and such
Research Antibody Target is not the mannose receptor antigen, Celldex shall
have the right to request that Medarex determine availability of an
antibody-exclusive commercial license pursuant to Section 3.4.  In the event that (i) such license is
available with respect to such Research Antibody and (ii) the right to use
the applicable Research Antibody Target with the HuMAb Technology does not
conflict with any right previously granted by Medarex, then Medarex does hereby
grant to Celldex, subject to the terms and conditions of this Agreement, an
antibody-exclusive, antigen-nonexclusive, worldwide, royalty-bearing (as set
forth in Article 4) license, with the right to sublicense as provided in Section 3.8,
under HuMAb Technology and the Medarex Technology to make, have made, use,
sell, offer for sale and import Licensed Products comprising such Research
Antibody in the Antibody Targeting Technology Field.


 


3.4          HuMAb Technology License Availability. 
In the event Celldex desires to obtain an assignment of a
given Anti-Mannose Receptor HuMAb Antibody pursuant to Section 2.2.2 or
3.3.1.2 or a license to a given Research Antibody pursuant to Section 3.3.1.3,
Celldex shall provide Medarex with a detailed written description of [ **** ]
and such other information as Medarex may reasonably request.  Within thirty (30) days of receipt of all
such information, 


 


13

















 


Medarex shall determine whether or not it can
effect such assignment or license. 
Medarex shall not be obligated to effect a requested assignment or
license only if, at the time the assignment or license is requested by Celldex,
Medarex is (i) already conducting an internal program with respect to such
antigen or antibody (either alone or with a collaborator), (ii) in
discussions with a Third Party in good faith to obtain or grant exclusive
rights to such antigen or antibody, or (iii) legally prohibited from
granting such assignment or license, whether pursuant to a Third Party
agreement or otherwise.


 


3.5          Covenant Not to License
or Use; Medarex Option.


 


3.5.1       Notwithstanding
anything to the contrary in this Agreement and notwithstanding any rights
Medarex may have to do so, [ **** ] Medarex has granted a license to Celldex
with respect to such Research Antibody pursuant to Section 3.3.1.3,
Medarex agrees that it will not thereafter license to any Third Party, use or
permit any of its Affiliates to use such Research Antibody outside the Antibody
Targeting Technology Field (it being understood that Celldex has exclusive
rights thereto in the Antibody Targeting Technology Field).


 


3.5.2       In the event that a
claim issues in [ **** ], including any divisionals, continuations,
continuation-in-parts, reissues and/or reexaminations of the foregoing, and/or
any foreign counterpart applications of the foregoing, (the “Option Patents”), then Celldex shall
promptly thereafter notify Medarex of such claim issuance, including a copy of
the issued claim and any file history relating thereto.  Any claim issuing from the Option Patents,
whether composition or method, which is not specifically and solely directed to
(i) the mannose receptor, including claims reciting mannose receptor
antibody(ies), fragments and sequences, or (ii) an antibody, or fragment
thereof, whereby the antibody or fragment serves as a targeting means with
respect to an Antigen-Presenting Cell for the purpose of modulating an immune
response in the manner described in clause (a) or (c) of Section 1.5,
shall be deemed to be an “Option Claim”.  Celldex hereby grants to Medarex an option to
obtain a worldwide, non-exclusive, royalty-free, fully paid up license, with
the right to sublicense, under the Option Patents to research, develop, make,
use, sell, offer for sale, and import any product falling under an Option
Claim, other than a product described by clause (i) or (ii) above.  If Medarex elects, in its sole discretion, to
exercise such option, Medarex shall notify Celldex of such election and upon
the providing of such notice, Celldex shall automatically be deemed to grant
such license to Medarex.  Notwithstanding
the foregoing, Medarex may not exercise an option, and shall not be entitled to
a license hereunder, with respect to a claim in the Option Patents to the
extent such claim is a composition of matter claim that specifically and solely
claims the amino acid sequence of a single specific antibody.


 


3.6          Future Medarex Antigens.  In
the event that, before the third anniversary of the Effective Date, Medarex
in-licenses rights with respect to antigens, which in-license expressly states
and includes “vaccine rights”, then within thirty (30) days of in-licensing
such rights, Medarex shall provide written notice to Celldex of such event
unless Medarex is prohibited from providing such notice and, unless Medarex is
prohibited from doing so, and, if mutually agreed to by the Parties in
accordance with the provisions of this Section 3.6, Medarex shall grant
rights within the Antibody Targeting Technology Field to Celldex with respect
to such antigens, pursuant to the terms of any Third Party agreement under
which Medarex has licensed such rights. 
Within fifteen (15) days of receiving such notice, Celldex shall provide
written notice to 


 


14

















 


Medarex whether it desires to negotiate with
respect to such rights within the Antibody Targeting Technology Field.  In the event that Celldex does so desire, the
Parties thereafter shall negotiate in good faith the terms pursuant to which
Medarex may grant an exclusive or non-exclusive, royalty-bearing license to
Celldex with respect to the applicable antigen in the Antibody Targeting
Technology Field.


 


3.7          Existing Grants; No
Other Rights.


 


3.7.1       Celldex acknowledges
and agrees that, pursuant to the terms of the Cross License Agreement, Medarex
has granted a non-exclusive license under certain Medarex patents to develop
and commercialize antibody products with respect to antigens, which antibody
product(s) could comprise the same antibody(ies) as a Licensed
Antibody(ies) hereunder.


 


3.7.2       Other than the rights
expressly granted under this Agreement, Celldex and its Affiliates shall have
no other right, express or implied, under the HuMAb Technology, the Medarex
Patents, or any other technology Controlled by Medarex, and Medarex shall
retain for itself all such rights.


 


3.8          Sublicenses.


 


 


3.8.1       Subject to Section 3.8.2,
Celldex may grant sublicenses under the licenses granted to Cellde in Sections
3.1, 3.2 and 3.3 to the extent necessary to research, develop, make, have made,
use, sell, offer for sale or import Licensed Royalty-Free Products and
Royalty-Bearing Products; provided, that within ten (10) days of
the date any such sublicense is executed, Celldex shall provide Medarex with at
least the following information with respect to each such Sublicensee: (a) the
identity of the Sublicensee, (b) a description of the Licensed
Royalty-Free Products and Royalty-Bearing Product and the rights being granted
to the Sublicensee, and (c) the territory in which the Licensed
Royalty-Free Products and Royalty-Bearing Product will be sold.  Each sublicense granted by Celldex shall be
consistent with and subject to all the terms and conditions of this
Agreement.  Celldex shall remain
responsible to Medarex for the compliance of each such Sublicensee with the
applicable financial, confidentiality and other obligations due  under this Agreement; provided, that with
respect to obligations of confidentiality and indemnification, Celldex shall
use commercially reasonable efforts to have such Sublicensee and Medarex enter
into a direct mutual obligation.


 


3.8.2       The Parties recognize
that, pursuant to the Cross License Agreement, Medarex may ant Celldex the
right to directly grant sublicenses under certain HuMAb Technology that is
covered by the Cross License Agreement to sell, lease, and offer for sale or
lease Royalty-Bearing Products.  So long
as such provisions are in effect, if Celldex grants or desires to grant a
sublicense to a particular Sublicensee under the HuMAb Technology pursuant to
Sections 3.1, 3.2 or 3.3 to sell, lease, and offer for sale or lease a
particular Royalty-Bearing Product, then Medarex shall enter into an agreement
with such Sublicensee which grants a direct license to such Sublicensee under
such of the HuMAb Technology that is covered by the Cross License Agreement to
sell, lease, and offer for sale or lease such Royalty-Bearing Product on the
same terms and conditions as the sublicense granted by or desired to be granted
by Celldex to such Sublicensee (“Direct
Sublicense Agreement”); provided, that each such Direct
Sublicense Agreement granted by Medarex shall: (a) be consistent with all
the terms and conditions of this 


 


15

















 


Agreement, (b) provide that all performance obligations of such
Sublicensee, including with respect to development and commercialization of
Royalty-Bearing Products and payment of amounts owing under the sublicense
granted to such Sublicensee by Celldex, shall be owed to Celldex and not to
Medarex, (c) not conflict with any of the rights granted under this
Agreement, (d) provide that Celldex is a third party beneficiary under
such Direct Sublicense Agreement, with the right, at Celldex’s expense, to
enforce the terms and conditions of such Direct Sublicense Agreement against
such Sublicensee, including the right to collect all monies due to Celldex from
such Sublicensee under such Direct Sublicense Agreement, and (e) be
subject to Celldex’s approval, such approval not to be unreasonably
withheld.  Further, it is understood and
agreed by Celldex that, in such sublicense granted by Celldex to such
Sublicensee, Celldex shall make the rights related to such certain HuMAb
Technology granted by Medarex to Celldex subject to such direct license granted
by Medarex to such Sublicensee, to the extent necessary such that the rights
granted by Medarex to Celldex hereunder shall not be in conflict with the
rights granted to such Sublicensee by Medarex under this Section 3.8.2.


 


ARTICLE 4


 


FINANCIAL PROVISIONS


 


4.1          Payments to Medarex.


 


4.1.1       Royalty Obligation.  Subject to Section 4.2, with respect to
each Royalty-Bearing Product, Celldex shall pay to Medarex a royalty on annual
(based on a calendar year) aggregate worldwide Net Sales of Royalty-Bearing
Products on a Royalty-Bearing Product-by-Royalty-Bearing Product basis as
follows:


 


	
   

  	
   

  	
  Annual Net Sale per 

  Royalty-Bearing Product

  	
   

  	
  Royalty Rate

  
	
  Portion of Annual Net
  Sales

  	
   

  	
  [ **** ]

  	
   

  	
  [ **** ]

  
	
  Portion of Annual Net
  Sales

  	
   

  	
  [ **** ]

  	
   

  	
  [ **** ]

  



 


4.1.2       Third Party Payments. 
Celldex shall be responsible for the payment of any royalties, license
fees and milestone and other payments due to (i) upstream licensors of
Medarex, to the extent such obligation is disclosed to Celldex in a Third Party
agreement provided by Medarex to Celldex on or before or within thirty (30)
days after the Effective Date, and (ii) Third Parties under license
agreements for intellectual property licensed to Celldex by a Third Party, in
the case of either clause (i) or clause (ii) under a sublicense or
license that is required to make, have made, use, sell, offer for sale and
import Licensed Products or Anti-Mannose Products; provided, however, that
Medarex shall be solely responsible for any payments and royalties owed to the
Medical Research Council, with respect to Royalty-Bearing Products, pursuant to
that certain License Agreement dated as of October 1, 1993, as amended on August 12,
1994 and on April 19, 2002, by and among the Medical Research Council
Institute of 


 


16

















 


Animal Physiology and Genetics Research of Babraham Hall, Marianne
Bruggemann and GPI (the “MRC Agreement”).


 


4.2          Royalty Rates and Term.


 


4.2.1       Royalty Term for Licensed Royalty-Bearing Products.  With respect to the royalty rates
for Licensed Royalty-Bearing Products, the Parties acknowledge and agree that
the Patent rights and Know-How licensed pursuant to this Agreement justify
royalty rates of differing amounts with respect to sales of such Licensed
Royalty-Bearing Products, which rates could be applied separately to Licensed
Royalty-Bearing Products involving the exercise of such Patent rights and/or
the incorporation of such Know-How, and that if such royalties were calculated
separately, royalties relating to Patent rights and royalties relating to
Know-How would last for different terms. 
The Parties have determined in light of such considerations and for
reasons of convenience that blended royalty rates for the Patent rights and the
Know-How licensed hereunder will apply during a single royalty term (which
blended royalty rates would be advantageous to both Parties).  Consequently, the Parties have agreed to
adopt the royalty rates set forth in Section 4.1.1 hereof with respect to
such products.  The royalties due
pursuant to Section 4.1.1 shall be payable on a country-by-country and
Licensed Royalty-Bearing Productby-Licensed Royalty-Bearing Product basis until
the date which is the later of: (a) the expiration of the last to expire
of the Valid Claims under the HuMAb Patents and the Medarex Patents, as
applicable, covering the Licensed Royalty-Bearing Product in each country of
sale of such Licensed Royalty-Bearing Product (such expiration to occur only
after expiration of extensions of any nature to such Patents which may be
obtained under applicable statutes or regulations in the respective countries,
such as the Drug Price Competition and Patent Term Restoration Act of 1984 in
the U.S.A. and similar Patent extension laws in other countries) to the extent
that the sale of such Licensed Royalty-Bearing Product would, but for such
license, infringe such Valid Claim, and (b) the tenth anniversary of the
First Commercial Sale of such Licensed Royalty-Bearing Product in such
country.  Upon expiration of the royalty
term with respect to a Licensed Royalty-Bearing Product in a country (other
than as a result of the early termination of this Agreement), and payment to
Medarex of all amounts due under this Agreement with respect to such Licensed
Royalty-Bearing Product in such country, the applicable grants under Article 3
with respect to such Licensed Royalty-Bearing Product in such country shall
become non-exclusive and fully paid-up.


 


4.2.2       Royalty Term for Anti-Mannose Products. 
In consideration for the transfer of the Anti-Mannose
Receptor HuMAb Antibodies to Celldex by Medarex as part of the Assigned Assets,
the Parties have agreed to adopt the royalty rates set forth in Section 4.1.1
hereof with respect to the Anti-Mannose Products.  The royalties due pursuant to Section 4.1.1
shall be payable on a country-by-country and Anti-Mannose
Product-by-Anti-Mannose Product basis until the date which is the later of: (a) the
expiration of the last to expire of the Valid Claims under the HuMAb Patents
and the Antibody Targeting Patents, as applicable, covering the Anti-Mannose
Product in each country of sale of such Anti-Mannose Product (such expiration
to occur only after expiration of extensions of any nature to such Patents
which may be obtained under applicable statutes or regulations in the
respective countries, such as the Drug Price Competition and Patent Term
Restoration Act of 1984 in the U.S.A. and similar Patent extension laws in
other countries) to the extent that the sale of such Anti-Mannose Product
would, but for such license, infringe such Valid Claim, and (b) the tenth
anniversary of the First 


 


17

















 


Commercial Sale of such Anti-Mannose Product in such country.  Upon expiration of the royalty term with
respect to an Anti-Mannose Product in a country (other than as a result of the
early termination of this Agreement), and payment to Medarex of all amounts due
under this Agreement with respect to such Anti-Mannose Product in such country,
no further royalties or payments of any kind with respect to such Anti-Mannose
Product shall be due hereunder.


 


4.2.3       Pending Patent Applications.  The
Parties acknowledge that Medarex has filed, and during the Term might file
additional, applications for patents that, upon issuance, would constitute a
Medarex Patent, Antibody Targeting Patent or HuMAb Patent.  In respect of any such application that was
prosecuted in good faith and for which a patent issues during the Term, the
claims included in such issued patent (a “Subject
Patent”) shall, to the extent otherwise meeting the criteria set forth
in the definition of Valid Claim, be deemed “Valid
Claims” for purposes of computing royalties hereunder, commencing on
the date of issuance of the Subject Patent. 
In addition, where Celldex would have owed additional royalties to
Medarex hereunder for the period commencing on the filing date to which the
application for a Subject Patent was entitled and ending on the date of
issuance of the Subject Patent had the claims included in such Subject Patent
been deemed Valid Claims from such filing date, then any such additional
royalties shall be due retroactively from Celldex to Medarex in respect of such
claims.  Medarex shall promptly notify
Celldex of the issuance of any Subject Patent, and Celldex shall calculate and
pay within ninety (90) days following such notice any retroactive royalties
payable under this Section 4.2.3 in respect of such Subject Patent, such
payment to include interest at the then-current rate for a one-year U.S.
Treasury Bill.


 


4.3          Royalty Payments.  Running
royalties due pursuant to Section 4.1.1 shall be payable on a quarterly
basis, within forty-five (45) days after the end of each Calendar Quarter,
based upon the Net Sales during such Calendar Quarter, commencing with the
Calendar Quarter in which the first sale of a Royalty-Bearing Product is
made.  Royalties shall be calculated in
accordance with GAAP and with the terms of this Article 4.  Only one royalty payment will be due on Net
Sales of a given Royalty-Bearing Product even though the manufacture, sale or
use of such Royalty-Bearing Product may be covered by more than one
intellectual property right in a country or more than one Valid Claim, or may
use both Patents-and Know-How.


 


4.4          Royalty Statements.  Celldex
shall deliver to Medarex within forty-five (45) days after the end of each
Calendar Quarter in which Royalty-Bearing Products, for which Celldex owes a
royalty hereunder, are sold, a detailed statement showing (a) Net Sales of
each such Royalty-Bearing Product on a country-by-country basis during the
applicable Calendar Quarter, and (b) the amount and calculation of
royalties due on such Net Sales.


 


4.5          Payment Method.  All
amounts due by Celldex hereunder shall be paid in U.S. dollars by wire transfer
in immediately available funds to an account designated by Medarex.  Any payments or portions thereof due
hereunder which are not paid on the date such payments are due under this
Agreement and not subject to good faith dispute, shall bear interest at a rate
equal to the lesser of the prime rate as published in The Wall Street Journal,
Eastern Edition, on the first day of each calendar quarter in which such
payments are overdue, plus one and one half (1.5) percentage points, or the
maximum rate permitted by law, calculated on the number of days such payment is
delinquent.


 


18














 


4.6          Currency; Foreign Payments.  If
any currency conversion shall be required in connection with any payment
hereunder, such conversion shall be made by using the exchange rate for the
purchase of U.S. dollars as published in The Wall Street Journal, Eastern
Edition, on the last business day of the calendar quarter to which such royalty
payments relate.


 


4.7          Taxes. 
All royalty amounts required to be paid to Medarex pursuant
to this Agreement may be paid with deduction for withholding for or on account
of any taxes (other than taxes imposed on or measured by net income) or similar
governmental charge imposed by a jurisdiction other than the United States (“Withholding
Taxes”).  At Medarex’s request, Celldex
shall provide Medarex a certificate evidencing payment of any Withholding Taxes
hereunder and shall reasonably assist Medarex to obtain the benefit of any
applicable tax treaty.


 


4.8          Records Retention;
Audit.


 


4.8.1       Record
Retention.  Celldex shall maintain (and
shall ensure that its Affiliates and Sublicensees shall maintain) complete and
accurate books, records and accounts that fairly reflect their respective Net
Sales of Licensed Products in sufficient detail to confirm the accuracy of any
payments required hereunder and in accordance with GAAP, which books, records
and accounts shall be retained by Celldex (and such Affiliates and
Sublicensees) until the later of (a) three (3) years after the end of
the period to which such books, records and accounts pertain, and (b) the
expiration of the applicable tax statute of limitations (or any extensions
thereof), or for such longer period as may be required by applicable law.


 


4.8.2       Audit.  Medarex shall have the right to have an
independent certified public accounting firm, reasonably acceptable to Celldex,
have access during normal business hours, and upon reasonable prior written
notice, to such of the records of Celldex (and its  Affiliates and Sublicensees) as may be
reasonably necessary to verify the accuracy of such Net Sales for any Calendar
Quarter ending not more than thirty-six (36) months prior to the date of such
request; provided, that Medarex shall not have the right to conduct more than
one such audit in any twelve (12)-month period nor to audit any particular
Calendar Quarter more than one time.  The
accounting firm shall disclose to each Party whether such Net Sales are correct
or incorrect and the specific details concerning any discrepancies.  No other information shall be provided to
Medarex.  Medarex shall bear the cost of
such audit unless the audit reveals a variance of more than five percent (5%)
from the reported results for the entire period audited, in which case Celldex
shall bear the cost of the audit.  The
results of such accounting firm shall be final, absent manifest error.


 


4.8.3       Payment of Additional Royalties; Credit.  If, based on the results of such
audit, additional payments are owed by Celldex under this Agreement, Celldex
shall make such additional payments within forty-five (45) days after the date
on which such accounting firm’s written report is delivered to Celldex.  If such audit shows that Celldex has overpaid
royalties to Medarex, then Celldex shall have the right to credit such amounts
from Medarex.


 


4.9          Confidentiality.  Medarex
shall treat all information subject to review under Section 4.8, but not
the reported results of such review, as Celldex’s Confidential Information
protected in accordance with the confidentiality provisions of Article 5.  Medarex shall cause its accounting firm to
enter into with Celldex a confidentiality agreement reasonably acceptable to 


 


 


19

















 


Celldex obligating such firm to maintain all such financial information
in confidence pursuant to such confidentiality agreement.


 


4.10        Reports to Medarex.  During
the Term, Celldex shall keep Medarex informed of its development and
commercialization activities subject to this Agreement with respect to
Royalty-Bearing Products, including the filing of an IND or the initiation of a
clinical trial, and on January 31 of each year shall provide Medarex with
a reasonably detailed written summary of such events and activities in the
preceding year.


 


4.11        [ **** ].  All royalties
[ **** ] during the period in which a [ **** ].


 


ARTICLE 5


 


CONFIDENTIALITY


 


5.1          Confidential Information.  Except
as expressly provided herein, the Parties agree that for the Term and for five (5) years
thereafter, the receiving Party shall keep completely confidential and shall
not publish or otherwise disclose and shall not use for any purpose except as
expressly provided in Section 5.2 any Confidential Information of the
other Party, except to the extent that it can be established by the receiving
Party by competent proof that such Confidential Information:


 


5.1.1       was
already known to the receiving Party, other than under an obligation of
confidentiality, at the time of disclosure;


 


5.1.2       was
generally available to the public or otherwise part of the public domain at the
time of its disclosure to the receiving Party;


 


5.1.3       became
generally available to the public or otherwise part of the public domain after
its disclosure and other than through any act or omission of the receiving
Party in breach of this Agreement;


 


5.1.4       was
independently developed by the receiving Party as demonstrated by documented
evidence prepared contemporaneously with such independent development; or


 


5.1.5       was
subsequently lawfully disclosed, other than under an obligation of
confidentiality, to the receiving Party by a Person other than a Party hereto.


 


5.2          Permitted Use and Disclosures.  Each
Party hereto may use or disclose information disclosed to it by the other Party
to the extent such use or disclosure is reasonably necessary in complying with
applicable governmental regulations or otherwise submitting information to tax
or other governmental authorities, conducting clinical trials, or making a
permitted sublicense or otherwise exercising its rights hereunder; provided,
that if a Party is required to make any such disclosure of the other Party’s
Confidential Information, other than pursuant to a confidentiality agreement,
it shall (a) give reasonable advance notice to the latter Party of such
disclosure, (b) if such advance notice is not possible, provide notice of
such 


 


20

















 


disclosure immediately thereafter, (c) to the extent possible,
minimize the extent of such disclosure, and (d) save to the extent
inappropriate in the case of patent applications, use all reasonable efforts to
secure confidential treatment of such information prior to its disclosure
(whether through protective orders or otherwise), it being understood that any
information so disclosed shall otherwise remain subject to the limitations on
use and disclosure hereunder.


 


5.3          Public Disclosure.  Except
as otherwise required by law, rule or regulation, neither Party shall
issue a press release or make any other public disclosure of this Agreement or
the terms hereof without the prior written approval of the other Party of such
press release or public disclosure and the content thereof; provided,
that the Parties agree that disclosures of information for which consent has
been previously obtained and of information of a similar nature to that which
has been previously disclosed publicly with respect to this Agreement, each
shall not require advance approval; and provided, further, that,
with prior notice to Celldex, Medarex may make a public disclosure with respect
to the specific stage of development of each Licensed Product as stated in the
contents of the report provided to Medarex by Celldex pursuant to Section 4.10.  Each Party shall submit any press release or
public disclosure requiring the other Party’s approval to the other Party, and
the receiving Party shall have three (3) business days to review and
approve any such press release or public disclosure, which approval shall not
be unreasonably withheld.  If the
receiving Party does not respond in writing within such three (3) business
day period, the press release or public disclosure shall be deemed
approved.  In addition, if a public
disclosure is required by law, rule or regulation, including in a filing
with the Securities and Exchange Commission, other than a filing on Form 10K
or Form 10Q, the disclosing Party shall provide copies of the disclosure
reasonably in advance of such filing or other disclosure for the nondisclosing
Party’s prior review and comment and the Parties shall thereafter mutually
agree upon the extent and nature of any such disclosures, such agreement not to
be unreasonably withheld.


 


5.4          Use of Name.  Each Party
may use the name, insignia, symbol, trademark, trade name or logotype of the
other Party only (a) in connection with announcements and other permitted
disclosures relating to this Agreement and the activities contemplated hereby,
including public disclosures by Medarex pursuant to Section 5.3, (b) in
public disclosures regarding the equity interest that Medarex has in Celldex, (c) as
required by applicable law, and (d) otherwise as agreed in writing by such
other Party.


 


5.5          Confidential Terms.  Except
as expressly provided herein, each Party agrees not to disclose this Agreement
or any terms hereof to any Third Party without the consent of the other Party;
except that such consent shall not be required for disclosure to actual or
prospective investors or to a Party’s accountants, attorneys and other
professional advisors.  In addition, the
terms of this Agreement may be disclosed pursuant to confidentiality
obligations at least as strict as are set forth herein, to actual or potential
Sublicensees and actual or potential acquirors or acquirees.


 


5.6          Publications.  Subject
to any Third Party rights existing as of the Effective Date, Medarex shall
submit to Celldex for review and approval all proposed academic, scientific and
medical publications and public presentations relating to any Licensed Product
or Anti-Mannose Product containing HuMAb Technology or Medarex Technology for
review in connection with preservation of Patent rights and trade secrets
and/or to determine whether Confidential 


 


21

















 


Information should be modified or deleted from the proposed publication
or public presentation.  Written copies
of such proposed publications and presentations shall be submitted to Celldex
no later than sixty (60) days before submission for publication or presentation
and Celldex shall provide its comments with respect to such publications and
presentations within thirty (30) days of its receipt of such written copy.  The review period may be extended for an
additional thirty (30) days if Celldex can demonstrate a reasonable need for
such extension including the preparation and filing of patent
applications.  By written agreement, this
period may be further extended.  Medarex will
comply with standard academic practice regarding authorship of scientific
publications and recognition of contribution of other Persons in any
publications relating to any Licensed Product or Anti-Mannose Product.


 


ARTICLE 6


 


ARTICLE 6 INTELLECTUAL PROPERTY; REGULATORY


 


6.1          Intellectual Property
Ownership.


 


6.1.1       Ownership of Technology.  Subject to this Section 6.1,
each Party shall own and retain all right, title and interest in and to any and
all intellectual property generated by or on behalf of such Party in the
exercise of a right granted to such Party hereunder.


 


6.1.2       Ownership of Medarex Patents and Antibody
Targeting Patents.  As between
the Parties, Medarex shall own and retain all right, title and interest in and
to all Medarex Patents, and Celldex shall own and retain all right, title and
interest in and to all Antibody Targeting Patents, in each case together with
the Know-How disclosed or claimed therein.


 


6.1.3       Ownership of HuMAb
Technology.


 


6.1.3.1       As
between the Parties, Medarex shall own and retain all right, title and interest
in and to all HuMAb Technology, including the HuMAb Mice.


 


6.1.3.2       Celldex
acknowledges and agrees that (a) except as set forth in Sections 3.1.2,
3.2.1, 3.3.1.1 and 3.3.1.3,, there are no licenses granted to Celldex under
this Agreement with respect to the HuMAb Technology, (b) Celldex has no
right under this Agreement to use for any purpose any Mice Materials other than
(i) the Antibody Materials included in the Biological Materials and (ii) any
Improvements thereto made by or on behalf of Celldex or its Affiliates or
Sublicensees, in each case ((i) and (ii)) solely in accordance the license
grants set forth in Sections 3.1.2, 3.2.1, 3.3.1.1 and 3.3.1.3, and (c) except
as expressly provided in clause (b), Celldex has no right to discover, develop
or otherwise make Improvements with respect to HuMAb Mice or the HuMAb
Technology.  Accordingly, neither Celldex
nor any of its Affiliates, successors, or permitted assignees, or their
licensees or Sublicensees, will engage, directly or indirectly, in activities
designed to, or otherwise undertake or attempt, either on behalf of itself or
another, to discover, develop or make any Improvements that relate to the HuMAb
Mice or HuMAb Technology.


 


22

















 


6.1.3.3       In
light of the foregoing, Medarex shall own and retain all right, title and
interest in and to all HuMAb Technology, including any and all Improvements
with respect to HuMAb Technology that are conceived, discovered, developed or
otherwise made, as necessary to establish authorship, inventorship or ownership
under applicable law, by or on behalf of Celldex, its Affiliates, its
successors or permitted assignees, or their licensees or Sublicensees, whether
or not patented or patentable, and any and all Patent and other intellectual
property rights with respect thereto. 
Accordingly, Celldex shall promptly disclose to Medarex in writing, the
conception or reduction to practice, or the discovery, development or making of
any HuMAb Technology and shall, and does hereby, assign, and shall cause its
Affiliates, successors, and permitted assignees, and their licensees and
Sublicensees, to so assign, to Medarex, without additional compensation, all of
their respective rights, title and interests in and to any such Improvements.


 


6.2          Medarex Patents and HuMAb Technology Patents.  Medarex shall have the first
right, at its expense, to prepare, file, prosecute and maintain the Medarex
Patents and the sole tight, at its expense, to prepare, file, prosecute and
maintain the HuMAb Patents, and in each case to conduct any interferences,
reexaminations, reissues, oppositions, or request for Patent term extensions
relating thereto.  Medarex shall consult
with Celldex, and consider in good faith Celldex’s comments, regarding all such
activities with respect to the preparation, filing, prosecution and maintenance
of the Medarex Patents and shall share with Celldex any correspondence and
communications with the Patent authorities relating to such Patents.  In the event that (a) Medarex declines
to file or, having filed, declines to further prosecute and maintain any
Medarex Patent, and (b) (i) no Third Party having rights to file,
prosecute or maintain such Medarex Patent pursuant to an agreement between such
Person and Medarex elects to so file, prosecute or maintain such Medarex Patent
or (ii) any Third Party having rights to file, prosecute or maintain such
Medarex Patent pursuant to an agreement between such Person and Medarex, having
elected to so file, prosecute or maintain such Medarex Patent, fails to
actively and diligently pursue the same, then Medarex shall provide Celldex
notice thereof prior to the expiration of any deadline relating to such
activities, but in any event at least thirty (30) days prior notice, Celldex
shall have the right, but not the obligation, to file, prosecute and maintain
such Medarex Patent and to conduct any interferences, reexaminations, reissues,
oppositions, or request for Patent term extension relating thereto, in each
case at Celldex’s expense, using counsel of its choice.


 


6.3          Antibody Targeting Patents.  Celldex
shall have the sole right, at its expense, to prepare, file, prosecute and
maintain the Antibody Targeting Patents, and to conduct any interferences, reexaminations,
reissues, oppositions, or request for patent term extension relating
thereto.  Celldex shall own and retain
all right, title and interest in and to all Antibody Targeting Technology,
including any and all Improvements with respect thereto, that are conceived,
discovered, developed or otherwise made by or on behalf of Medarex, its
Affiliates, its successors or permitted assignees, or their licensees or
Sublicensees, whether or not patented or patentable, and any and all Patent and
other intellectual property rights with respect thereto.  Accordingly, Medarex shall promptly disclose
to Celldex in writing, the conception or reduction to practice, or the
discovery, development or making of any Antibody Targeting Technology and
shall, and does hereby, assign, and shall cause its Affiliates, successors, and
permitted assignees, and their licensees and Sublicensees, to so assign, to
Celldex, without additional compensation, all of their respective rights, title
and interests in and to any such Improvements.


 


23

















 


6.4          Third Party Litigation.  In
the event that a Third Party institutes a Patent infringement suit (including
any suit alleging the invalidity or =enforceability of the Patents) against
either Party or its respective Affiliates, licensees or permitted Sublicensees
during the Term, alleging that any activities hereunder, infringes one or more
Patents, or other intellectual property rights held by such Third Party (an “Infringement
Suit”), the Parties shall cooperate with one another in defending such suit;
provided, that the Party responsible for directing and controlling the
Infringement Suit (as provided hereinafter) shall reimburse the other Party for
all reasonable costs and expenses incurred in rendering such cooperation,
including reasonable attorneys’ fees. 
Medarex shall direct and control, at its sole cost and expense, any
Infringement Suit with respect to the HuMAb Technology and the Medarex Patents
(including with respect to any inventions claimed or described therein).  Celldex shall direct and control, at its sole
cost and expense, any Infringement Suit with respect to the Antibody Targeting
Patents (including with respect to any inventions claimed or described
therein).


 


6.5          Enforcement.


 


6.5.1       Rights and Procedures.  If Medarex or Celldex determines
that any of the HuMAb Technology, the Medarex Patents or the Antibody Targeting
Patents are being infringed by a Third Party’s activities and that such
infringement could affect the exercise by the Parties of their respective
rights and obligations under this Agreement, it shall promptly notify the other
Party in writing and provide such other Party with any evidence of such
infringement that is reasonably available. 
Promptly after the receipt of such written notice, the Parties shall
meet and discuss in good faith the removal of such infringement.  Medarex shall have the sole right, but not
the obligation, to pursue such Third Party with respect to infringement of the
HuMAb Technology and the Medarex Patents. 
Celldex shall have the sole right, but not the obligation, to pursue
such Third Party with respect to the Antibody Targeting Patents.  In either case, the pursuing Party shall
consider in good faith any comments from the other Party and shall keep the
other Party reasonably informed of any steps taken to remove such infringement.


 


6.5.2       Cooperation. 
The Party not enforcing the applicable technology or Patents
pursuant to Section 6.5.1 shall provide reasonable assistance to the other
Party, at such other Party’s expense, including providing access to relevant
documents and other evidence, making its employees available at reasonable
business hours, and joining the action to the extent necessary to allow the
enforcing Party to maintain the action.


 


6.5.3       Recovery. 
Any amounts recovered by a Party pursuant to Section 6.5.1,
whether by settlement or judgment, shall be used to reimburse the Parties for
their reasonable costs and expenses in making such recovery (which amounts
shall be allocated pro rata if insufficient to cover the totality of such
expenses), with any remainder being retained by the Party that has exercised
its right to bring the enforcement action or, if such enforcement action is
jointly funded, such remainder shall be shared by the Parties based on their
economic interests in the recovery.


 


6.6          Regulatory
Issues.  Celldex shall have sole control
over all regulatory matters, including interfacing, corresponding and meeting
with any regulatory authority, relating to the development and
commercialization of Anti-Mannose Products and Licensed Products.  In connection with such products, at Celldex’s
reasonable request, (a) Medarex will provide 


 


24

















 


appropriate rights of reference to Medarex filings with respect to
regulatory submissions, and (b) at Medarex’s sole discretion and at
Celldex’s expense, Medarex will assist with regulatory submissions, review and
approvals.


 


ARTICLE 7


 


TERM AND TERMINATION


 


7.1          Term.  The term of this
Agreement (the “Term”) shall commence upon the Effective Date and shall
continue in effect until the expiration of Celldex’s obligation to make any
royalty payments under this Agreement, at which time the licenses granted to
Celldex hereunder shall (if they have not theretofore become so under Section 4.2)
become fully paid-up and irrevocable.


 


7.2          Breach.  Any failure by
a Party to comply with any of its obligations contained herein shall entitle
the Party not in breach to give to the Party in breach notice specifying the
nature of the breach, requiring the breaching Party to make good or otherwise
cure such breach..  If such breach is not
cured within thirty (30) days after the receipt of such notice (or, if such
breach cannot be cured within such thirty (30)-day period, if the Party in
breach does not commence actions to cure such breach within such period and
thereafter diligently continue such actions or if such breach is not otherwise
cured within ninety (90) days after the receipt of such notice), the Party not
in breach shall then be entitled to pursue the rights and remedies available to
it by law or in equity.


 


7.3          Accrued Rights;
Surviving Obligations.


 


7.3.1       Accrued Rights.  Expiration of this Agreement shall
be without prejudice to any rights that shall have accrued to the benefit of a
Party prior to such expiration.  Such
expiration shall not relieve a Party from obligations that are expressly
indicated to survive the expiration of this Agreement.


 


7.3.2       Survival. 
Articles 2, 4 (with respect to the last sentence of 4.2.1 and
to obligations arising prior to expiration or termination), 5 (in accordance
with its terms), 6, 7, 8, 9 and 10, and Sections 3.3.1.2, 3.5.2 and 3.6 (in
accordance with its terms) shall survive the expiration or earlier termination
of this Agreement.


 


ARTICLE 8


 


INDEMNIFICATION


 


8.1          Indemnification of Medarex.  Celldex
shall indemnify Medarex, its Affiliates and their respective directors,
officers, employees and agents, and defend and save each of them harmless, from
and against any and all losses, damages, liabilities, costs and expenses
(including reasonable attorneys’ fees and expenses) in connection with any and
all liability, suits, investigations, claims or demands (collectively, “Losses”)
arising from or occurring as a result of (a) any breach by Celldex of its
representations, warranties, covenants or obligations under this Agreement, (b) the
failure of Celldex to assume, pay, perform and discharge any Assumed 


 


25

















 


Liabilities, including any breach after the Effective Date of the
Assigned Contracts, or (c) the exercise of rights granted by or on behalf
of Medarex under this Agreement, including any infringement or Third Party
personal injury or damage to tangible personal property resulting, in the case
of each clause (a), (b) and (c) by or on behalf of Celldex or its
Affiliates or Sublicensees.  The
foregoing obligation to indemnify, defend and save harmless shall not apply to
the extent of any Losses for which Medarex has an obligation to indemnify
Celldex pursuant to Section 8.2. 
For any such Losses as to which each Party has an indemnification
obligation pursuant to the first sentences of Sections 8.1 and 8.2, each Party
shall indemnify the other to the extent of the indemnifying Party’s respective
fault (a Party’s fault being defined by those categories for which it must
indemnify the other Party pursuant to the first sentence of Section 8.1 or
8.2) for the Losses.


 


8.2          Indemnification of Celldex.  Medarex
shall indemnify Celldex and its Affiliates, directors, officers, employees and
agents, and defend and save each of them harmless, from and against any and all
Losses arising from or occurring as a result of (a) any breach by Medarex
of its representations, warranties, covenants and obligations under this
Agreement, (b) the failure of Medarex to assume, pay, perform and
discharge any Retained Liabilities, including any breach prior to the Effective
Date of the Assigned Contracts, or (c) the exercise of rights retained by
or on behalf of Medarex under this Agreement in respect of any Humanized
Anti-CD64 Antibody or Murine Anti-CD64 Antibody, or granted to Medarex pursuant
to Section 3.5.2, including any infringement or Third Party personal
injury or damage to tangible personal property resulting, in the case of each
clause (a), (b) and (c) by or on behalf of Medarex or its Affiliates
or licensees.  The foregoing obligation
to indemnify, defend and save harmless shall not apply to the extent of any
Losses for which Celldex has an obligation to indemnify Medarex pursuant to Section 8.1.  For any such Losses as to which each Party
has an indemnification obligation pursuant to the first sentences of Sections
8.1 and 8.2, each Party shall indemnify the other to the extent of the indemnifying
Party’s respective fault (a Party’s fault being defined by those categories for
which it must indemnify the other Party pursuant to the first sentence of Section 8.1
or 8.2) for the Losses.


 


8.3          Indemnification
Procedure.


 


8.3.1       Notice of Claim.  The indemnified Party shall give
the indemnifying Party prompt written notice (an “Indemnification Claim Notice”)
of any Losses or discovery of fact upon which such indemnified Party intends to
base a request for indemnification under Section 8.1 or Section 8.2,
but in no event shall the indemnifying Party be liable for any Losses that
result from any delay in providing such notice. 
Each Indemnification Claim Notice must contain a description of the
claim and the nature and amount of such Loss (to the extent that the nature and
amount of such Loss are known at such time). 
The indemnified Party shall furnish promptly to the indemnifying Party
copies of all papers and official documents received in respect of any Losses.  All indemnification claims in respect of a
Party, its Affiliates or their respective directors, officers, employees and
agents (collectively, the “Indemnitees” and each an “Indemnitee”) shall be made
solely by such Party to this Agreement (the “Indemnified Party”).


 


8.3.2       Third Party Claims.  Subject to Section 6.4, the
obligations of an indemnifying Party under this Article 8 with respect to
Losses arising from claims of any Third Party that are subject to
indemnification as provided for in Section 8.1 or 8.2 (a “Third Party 


 


26

















 


Claim”) shall
be governed by and be contingent upon the following additional terms and
conditions:


 


8.3.2.1       Control of Defense.  At its option, the indemnifying
Party may assume the defense of any Third Party Claim by giving written notice
to the Indemnified Party within thirty (30) days after the indemnifying Party’s
receipt of an Indemnification Claim Notice. 
The assumption of the defense of a Third Party Claim by the indemnifying
Party shall not be construed as an acknowledgment that the indemnifying Party
is liable to indemnify any Indemnitee in respect of the Third Party Claim, nor
shall it constitute a waiver by the indemnifying Party of any defenses it may
assert against any Indemnitee’s claim for indemnification.  Upon assuming the defense of a Third Party
Claim, the indemnifying Party may appoint as lead counsel in the defense of the
Third Party Claim any legal counsel selected by the indemnifying Party.  In the event the indemnifying Party assumes
the defense of a Third Party Claim, the Indemnified Party shall immediately
deliver to the indemnifying Party all original notices and documents (including
court papers) received by any Indemnitee in connection with the Third Party
Claim.  Should the indemnifying Party assume
the defense of a Third Party Claim, the indemnifying Party shall not be liable
to the Indemnified Party or any other Indemnitee for any legal expenses
subsequently incurred by such Indemnified Party or other Indemnitee in
connection with the analysis, defense or settlement of the Third Party
Claim.  In the event that it is
ultimately determined that the indemnifying Party is not obligated to
indemnify, defend or hold harmless an Indemnitee from and against the Third
Party Claim, the Indemnified Party shall reimburse the indemnifying Party for
any and all costs and expenses (including attorneys’ fees and costs of suit)
and any Losses incurred by the indemnifying Party in its defense of the Third
Party Claim with respect to such Indemnitee.


 


8.3.2.2       Right to Participate in Defense.  Without limiting Section 8.3.2.1, any
Indemnitee shall be entitled to participate in, but not control, the defense of
such Third Party Claim and to employ counsel of its choice for such purpose;
provided, that such employment shall be at the Indemnitee’s own expense unless (a) the
employment thereof has been specifically authorized by the indemnifying Party
in writing, or (b) the indemnifying Party has failed to assume the defense
and employ counsel in accordance with Section 8.3.2.1 (in which case the
Indemnified Party shall control the defense).


 


8.3.2.3       Settlement. 
With respect to any Losses relating solely to the payment of
money damages in connection with a Third Party Claim and that will not result
in the Indemnitee’s becoming subject to injunctive or other relief or otherwise
adversely affect the business of the Indemnitee in any manner, and as to which
the indemnifying Party shall have acknowledged in writing the obligation to
indemnify the Indemnitee hereunder, the indemnifying Party shall have the sole
right to consent to the entry of any judgment, enter into any settlement or
otherwise dispose of such Loss, on such terms as the indemnifying Party, in its
sole discretion, shall deem appropriate. 
With respect to all other Losses in connection with Third Party Claims,
where the indemnifying Party has assumed the defense of the Third Party Claim
in accordance with Section 8.3.2.1, the indemnifying Party shall have
authority to consent to the entry of any judgment, enter into any settlement or
otherwise dispose of such Loss provided it obtains the prior written consent of
the Indemnified Party (which consent shall not be unreasonably withheld or
delayed).  The indemnifying Party shall not
be liable for any settlement or other disposition of a Loss by an Indemnitee
that is reached without the written consent of the indemnifying Party.  


 


27

















 


Regardless of
whether the indemnifying Party chooses to defend or prosecute any Third Party
Claim, no Indemnitee shall admit any liability with respect to, or settle,
compromise or discharge, any Third Party Claim without the prior written
consent of the indemnifying Party.


 


8.3.2.4       Cooperation. 
Regardless of whether the indemnifying Party chooses to
defend or prosecute any Third Party Claim, the Indemnified Party shall, and
shall cause each other Indemnitee to, cooperate in the defense or prosecution
thereof and shall furnish such records, information and testimony, provide such
witnesses and attend such conferences, discovery proceedings, hearings, trials
and appeals as may be reasonably requested in connection therewith.  Such cooperation shall include access during
normal business hours afforded to indemnifying Party to, and reasonable retention
by the Indemnified Party of, records and information that are reasonably
relevant to such Third Party Claim, and making Indemnitees and other employees
and agents available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder, and the
indemnifying Party shall reimburse the Indemnified Party for all its reasonable
out-of-pocket expenses in connection therewith.


 


8.3.2.5       Expenses. 
Except as provided above, the costs and expenses, including fees
and disbursements of counsel, incurred by the Indemnified Party in connection
with any claim shall be reimbursed on a calendar quarter basis by the
indemnifying Party, without prejudice to the indemnifying Party’s right to
contest the Indemnified Party’s right to indemnification and subject to refund
in the event the indemnifying Party is ultimately held not to be obligated to
indemnify the Indemnified Party.


 


ARTICLE 9


 


REPRESENTATIONS, WARRANTIES AND COVENANTS


 


9.1          Mutual Representations, Warranties and Covenants.  Each Party (“Representing Party”)
hereby represents and warrants to the other Party: (a) the Representing
Party is duly organized and validly existing under the laws of its jurisdiction
of incorporation; (b) that this Agreement has been duly authorized by all
requisite corporate action of the Representing Party; (c) the Representing
Party has the full legal right and authority to enter into this Agreement and
this Agreement is legally binding on the Representing Party; and (d) this
Agreement does not conflict with any other agreement to which the Representing
Party is a party, or the Representing Party’s obligations to any Third Party.


 


9.2          Biological Materials.  With
respect to the transfer of Biological Materials by

Medarex to Celldex pursuant to Section 2.4, Celldex acknowledges and
agrees as follows:


 


9.2.1       The
Biological Materials are experimental in nature and may have hazardous
properties.  The Biological Materials are
bring provided by Medarex “as is” and Medarex makes no representations or
warranties of any kind, either express or implied, including warranties of
merchantability or fitness for a particular purpose, or that the use of the
Biological Materials will not infringe any Patent, copyright, trademark or
other proprietary rights.


 


28

















 


9.2.2       Celldex
assumes all liability for claims for damages against it or Medarex by Third
Parties which may arise from any use, handling, storage or disposal of the
Biological Materials by Celldex, its Affiliates and Sublicensees and further
Celldex hereby forever generally and completely releases and discharges
Medarex, its Affiliates and their respective directors, officers, employees and
agents of and from any and all claims, obligations, liabilities and demands of
every kind and nature, in law, equity, statute or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, anticipated and
unanticipated, liquidated or unliquidated, for damages actual and
consequential, past, present and future, arising out of or in any way related
to the Biological Materials or the use thereof.


 


9.3          Additional Medarex
Representations, Warranties and Covenants.


 


9.3.1       Representations, Warranties and
Covenants.  Medarex
represents, warrants and covenants to Celldex that, as of the Effective Date:


 


9.3.1.1                    each item
constituting Assigned Assets is assigned, transferred

and otherwise conveyed free and clear of all liens and encumbrances.


 


9.3.1.2       except
as provided in Schedule 9.3.1, the Antibody Targeting Patents are existing and,
to the knowledge of the officers of Medarex, the Antibody Targeting Patents
have not been held by a court of competent jurisdiction to be invalid or
unenforceable, in whole or in part;


 


9.3.1.3       to
the knowledge of the officers of Medarex, there are no existing or threatened
legal actions, legal suits or legal claims pending with respect to the right of
Medarex to enter into and perform its obligations under this Agreement;


 


9.3.1.4       except
as provided in Schedule 9.3.1, to the knowledge of the officers of Medarex,
there are no existing or threatened legal actions, legal suits or legal claims
pending that challenge the validity or enforceability of the Antibody Targeting
Patents;


 


9.3.1.5       9.3.1.5
to the knowledge of the officers of Medarex, Medarex has not received any
notice that has led Medarex to believe that MDX-1307 IND is not currently in
good standing with the FDA;


 


9.3.1.6       to
the knowledge of the officers of Medarex, each Assigned Contract is in full
force and effect, and Medarex has provided, to the extent contractually
permitted, a true and complete copy of each such Assigned Contract to Celldex;
and


 


9.3.1.7       Medarex
has made available to Celldex, to the extent material and in Medarex’s
possession: (a) preclinical study results and protocols for the Licensed
Antibodies and the Anti-Mannose Receptor HuMAb Antibodies, (b) written
communications to and from the FDA with respect to the Antibody Targeting
Technology, (c) written communications to and from the FDA with respect to
the MDX-1307 IND, and (d) written FDA requests for data and studies with
respect to the MDX-1307 IND.


 


29

















 


9.3.2       Certain Definitions.  For purposes of this Section 9.3,
it is understood and agreed that:


 


9.3.2.1       all
materials referred to in Section 9.3.1.7, a written copy of which was
provided to and permitted to be kept by Tibor Keler on or before the Effective
Date, shall be deemed to have been “made available to Celldex”;


 


9.3.2.2       “knowledge
of’ a Person shall mean, with respect to a representation or warranty, such
Person’s good faith understanding of the facts and information in his or her
possession without any duty to conduct any investigation with respect to such
facts and information or such representation or warranty; and


 


9.3.2.3       “officers”
shall mean Persons in the positions of chief patent counsel, senior vice
president, president and chief executive officer.


 


9.4          DISCLAIMER OF WARRANTY.  EXCEPT
FOR THE EXPRESS WARRANTIES SET FORTH ABOVE IN THIS ARTICLE 9, MEDAREX AND
CELLDEX MAKE NO REPRESENTATIONS AND GRANT NO WARRANTIES, EXPRESS OR IMPLIED,
EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE.  MEDAREX AND CELLDEX EACH SPECIFICALLY
DISCLAIM ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OR ENFORCEABILITY OF ANY
PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES.


 


ARTICLE 10


 


MISCELLANEOUS


 


10.1        Force Majeure.  Neither
Party shall be held liable or responsible to the other Party or be deemed to
have defaulted under or breached this Agreement for failure or delay in
fulfilling or performing any term of this Agreement when such failure or delay
is caused by or results from events beyond the reasonable control of the
non-performing Party, including fires, floods, embargoes, shortages, epidemics,
quarantines, war, acts of war (whether war be declared or not), insurrections,
riots, civil commotion, strikes, lockouts or other labor disturbances, acts of
God or acts, omissions or delays in acting by any governmental authority.  The non-performing Party shall notify the
other Party of such force majeure within ten (10) days after such
occurrence by giving written notice to the other Party stating the nature of
the event, its anticipated duration, and any action being taken to avoid or
minimize its effect.  The suspension of
performance shall be of no greater scope and no longer duration than is
necessary and the non-performing Party shall use commercially reasonable
efforts to remedy its inability to perform; provided, that in the event the
suspension of performance continues for one-hundred and eighty 


 


30

















 


(180) days after the date of the occurrence, the Parties shall meet to
discuss in good faith how to proceed in such event.


 


10.2        Assignment.  The Parties’
rights and obligations under this Agreement will bind and inure to the benefit
of their respective successors, heirs, executors and administrators and
permitted assigns.  Neither Party shall
assign or delegate its obligations under this Agreement either in whole or in
part without the prior written consent of the other Party; provided, that
either Party may assign this Agreement, without the other Party’s consent (a) to
its Affiliate(s) (provided, that the assigning Party shall remain jointly
and severally liable with such Affiliate(s) under this Agreement), and (b) to
an entity that acquires all or substantially all of the business or assets of
the assigning Party, whether by merger, reorganization, acquisition, sale or
otherwise.


 


10.3        Severability.  If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or obligations of either
Party under this Agreement will not be materially and adversely affected
thereby, (a) such provision shall be fully severable, (b) this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom, and (d) in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and reasonably
acceptable to the Parties herein.  To the
fullest extent permitted by applicable law, each Party hereby waives any
provision of law that would render any provision prohibited or unenforceable in
any respect.


 


10.4        Disputes.  Any dispute
that may arise relating to this Agreement shall be referred to the Chief
Executive Officers of each of the Parties (or their respective designees) who
shall use their good faith efforts to mutually agree upon the proper course of
action to resolve the dispute.  If any
dispute is not resolved by the Chief Executive Officers of the Parties (or
their designees) within ten (10) business days after such dispute is
referred to them, then either Party shall have the right to litigate such
dispute in accordance with Section 10.5 or to pursue such other dispute
resolution mechanism as the Parties may agree.


 


10.5        Governing Law, Jurisdiction, Venue and Service.  This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey, applicable to
contracts made and wholly performed within such jurisdiction by residents of
such jurisdiction.  The Parties hereby
irrevocably and unconditionally consent to the exclusive jurisdiction of the
courts of the State of New Jersey for any action, suit or proceeding (other
than appeals therefrom) arising out of or relating to this Agreement, and agree
not to commence any action, suit or proceeding (other than appeals therefrom)
related thereto except in such courts. 
The Parties further hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding (other than
appeals therefrom) arising out of or relating to this Agreement in the courts
of the State of New Jersey, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an
inconvenient forum.


 


31

















 


10.6        Notices.  All notices or
other communications that are required or permitted hereunder shall be in
writing and delivered personally, sent by facsimile (and promptly confirmed by
personal delivery, registered or certified mail or overnight courier as
provided herein), sent by nationally-recognized overnight courier or sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:


 


If to Celldex, to:


 


Celldex Therapeutics, Inc.


519 Route 173W


Bloomsbury, New Jersey 08804


Attention: Chief Executive Officer


Facsimile: (908) 713-6002


 


with a copy to:


 


Morgan, Lewis & Bockius LLP 502
Carnegie Center


Princeton, New Jersey 08540


Attention: Randall B. Sunberg, Esq.


Facsimile: (877) 432-9652


 


If to Medarex, to:


 


Medarex, Inc.


707 State Road


Princeton, New Jersey 08540-1437


Attention: President


Facsimile: (609) 430-2850


 


with copies to:


 


Medarex, Inc.


707 State Road


Princeton, New Jersey 08540-1437 Attention:
General Counsel


Facsimile: (609) 430-4215


 


Medarex, Inc.


707 State Road


Princeton, New Jersey 08540-1437


Attention: Contracts Administrator


Facsimile: (609) 430-4215


 


or to such other address as the Party to whom
notice is to be given may have furnished to the other Party in writing in
accordance herewith.  Any such
communication shall be deemed to have been given (a) when delivered, if
personally delivered or sent by facsimile on a business day, (b) on the
business day after dispatch, if sent by nationally-recognized overnight
courier, and (c) on 


 


32

















 


the third business day following the date of
mailing, if sent by mail.  It is
understood and agreed that this Section 10.6 is not intended to govern the
day-to-day business communications necessary between the Parties in performing
their duties, in due course, under the terms of this Agreement.


 


10.7        Entire Agreement; Modifications.  This
Agreement, together with all Appendices and Schedules attached hereto, sets
forth and constitutes the entire agreement and understanding between the
Parties with respect to the subject matter hereof and thereof and all prior
agreements, understanding, promises and representations, whether written or
oral, with respect thereto are superseded hereby and thereby.  Each Party confirms that it is not relying on
any representations or warranties of the other Party except as specifically set
forth herein or therein.  No amendment,
modification, release or discharge shall be binding upon the Parties unless in
writing and duly executed by authorized representatives of both Parties.


 


10.8        Relationship of the Parties.  It
is expressly agreed that the Parties shall be independent contractors of one
another and that the relationship between the Parties shall not constitute a
partnership, joint venture or agency. 
Neither Party shall have the authority to make any statements,
representations or commitments of any kind, or to take any action, which shall
be binding on the other, without the prior written consent of the other to do
so.  All Persons employed by a Party
shall be employees of such Party and not of the other Party and all costs and
obligations incurred by reason of any such employment shall be for the account
and expense of such Party.


 


10.9        Waiver.  Any term or
condition of this Agreement may be waived at any time by the Party that is
entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the Party
waiving such term or condition.  The waiver
by either Party hereto of any right hereunder or of the failure to perform or
of a breach by the other Party shall not be deemed a waiver of any other right
hereunder or of any other breach or failure by said other Party whether of a
similar nature or otherwise.


 


10.10      Construction.  Except
where the context otherwise requires, wherever used, the singular shall include
the plural, the plural the singular, the use of any gender shall be applicable
to all genders, the term “or” has the inclusive meaning represented by the
phrase “and/or”, and the terms “including” and “includes” mean “including
without limitation” and “includes without limitation,” respectively.  The captions of this Agreement are for
convenience of reference only and in no way define, describe, extend or limit
the scope or intent of this Agreement or the intent of any provision contained
in this Agreement.  The language of this
Agreement shall be deemed to be the language mutually chosen by the Parties and
no rule of strict construction shall be applied against either Party
hereto.


 


10.11      No Benefit to Third
Parties.  The representations,
warranties, covenants and agreements set forth in this Agreement are for the
sole benefit of the Parties and their successors and permitted assigns, and they
shall not be construed as conferring any rights on any other Person.


 


33

















 


10.12      Further Assurance.


 


10.12.1.1  On and after the Effective
date, Medarex shall from time to time, at the request of Celldex, execute and
deliver, or cause to be executed and delivered, such other instruments of
conveyance and transfer and take such other actions as Celldex may reasonably
request, in order to implement or give effect to the transactions contemplated
hereby and to vest in Celldex good and marketable title to the Biological
Materials.


 


10.12.1.2  On
and after the Effective Date, Celldex shall from time to time, at the request
of Medarex, take such actions as Medarex may reasonably request, in order to
implement or give effect to the transactions contemplated hereby, including
Celldex’s assumption of the Assumed Liabilities.


 


10.13      English Language.  This
Agreement has been written and executed in the English language.  Any translation into any other language shall
not be an official version thereof, and in the event of any conflict in
interpretation between the English version and such translation, the English
version shall control.


 


10.14      References.  Unless
otherwise specified, (a) references in this Agreement to any Article,
Section, Schedule or Appendix shall mean references to such Article, Section,
Schedule or Appendix of this Agreement, (b) references in any section to
any clause are references to such clause of such section, and (c) references
to any agreement, instrument or other document in this Agreement refer to such
agreement, instrument or other document as originally executed or, if
subsequently varied, replaced or supplemented from time to time, as so varied,
replaced or supplemented and in effect at the relevant time of reference
thereto.


 


10.15      Counterparts.  This
Agreement may be executed in two (2) or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


[Signature page, follows]


 


34

















 


IN
WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the
date first above written.


 


 


	
  MEDAREX, INC.

  	
  CELLDEX THERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  
	
  By:

  	
        /s/ W.
  Bradford Middlekauff

  	
   

  	
  By:

  	
       /s/ Anthony
  Marucci

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   W. Bradford Middlekauff

  	
   

  	
  Name:

  	
   Anthony Marucci

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
    Senior Vice President

  	
   

  	
  Title:

  	
     V.P. and CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Genpharm International, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ W. Bradford Middlekauff

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   W. Bradford Middlekauff

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
    General Counsel

  	
   

  	 

																		



 


 


35

















 


APPENDIX A


MEDAREX PATENTS


 


[ **** ]


 


 


36

















 


CONFIDENTIAL


 


APPENDIX B


 


ANTIBODY TARGETING PATENTS


 


[ **** ]


 


37

















 


CONFIDENTIAL


APPENDIX C


BIOLOGICAL MATERIALS


 


[ **** ]


 


38

















 


CONFIDENTIAL


 


APPENDIX D


[ **** ]


 


[ **** ]


 


39

















 


CONFIDENTIAL


 


APPENDIX E


 


[ **** ]


 


40

















 


CONFIDENTIAL


 


SCHEDULE 2.1.7


ASSIGNED CONTRACTS*


 


1.     Option
Agreement between MI and Yale University, dated February 4, 2002 and
effective as of March 25, 2002; together with the related and appended
Research Agreement between MI and Yale University, effective as of April 4,
2002.


 


2.     Material
Transfer Agreement between, on the one hand, MI, and, on the other hand, Inger
Sandlie, Professor Dr. Scient, and University of Oslo, dated January 15,
2003.


 


3.     Material
Transfer Agreement between, on the one hand, MI, and, on the other hand,
Stephen Dewhurst, Ph.D., and University of Rochester, dated May 14, 2001,
as amended on April 30, 2003.


 


4.     Material
Transfer and Research Agreement between John Connolly, Ph.D. and Dartmouth
College, on the one hand, and MI, on the other hand, dated June 6, 2001,
as amended on May 30, 2003.


 






*The parties acknowledge that an agreement
between MI and Duke University relating to MI’s retention of Duke University to
assist in Phase I clinical trials of MDX-1307 has been signed by MI and sent
for Duke University signature; but, as of the date hereof, an executed copy
thereof has not been returned to MI from Duke University. Promptly following
the date hereof, the parties shall cooperate to communicate with Duke
University and to cause the contract sent for Duke University signature to be
retracted and a contract between Celldex and Duke University substituted
therefor. However, in the event an copy of the original MI/Duke agreement is
returned to MI after the date hereof executed by Duke University, then such
agreement shall be an Assigned Contract hereunder.


 


41

















 


CONFIDENTIAL


 


SCHEDULE
2.5.1


INFORMATION
AND MATERIALS RELATING SOLELY


 


[ **** ]


 


42

















 


CONFIDENTIAL


 


SCHEDULE
2.5.2


INFORMATION
AND MATERIALS RELATING IN PART


 


[ **** ]


 


43

















 


CONFIDENTIAL


 


SCHEDULE
9.3.1


EXCEPTIONS
TO MEDAREX REPRESENTATIONS AND WARRANTIES


 


Opposition in the European Patent Office
against EP 553244 (European application number 91919595.8) filed by Pasteur
Merieux on September 30, 1999.


 


 


44














[
**** ] indicates confidential portions have been redacted and submitted
separately pursuant to  confidentiality request with the Commission


 


CONFIDENTIAL


 


AMENDMENT  NO. 1
TO


ASSIGNMENT AND LICENSE AGREEMENT


 


THIS AMENDMENT NO. 1 TO ASSIGNMENT AND LICENSE
AGREEMENT (“Amendment
No. 1”) is made and entered into effective as of October 19, 2007 (“Amendment
No. 1 Date”) by and between MEDAREX,
INC., 707 State Road, Princeton, New Jersey 08540 and GENPHARM INTERNATIONAL, INC., 521
Cottonwood Drive, Milpitas, California 95035 (collectively, “Medarex”) and CELLDEX THERAPEUTICS, INC., 222 Cameron
Drive, Suite 400, Phillipsburg, New Jersey 08865 (“Celldex”).  Capitalized terms used in this Amendment No. 1
that are not otherwise defined herein shall have the same meanings as such
terms are defined in the Assignment and License Agreement (as defined below).
Celldex and Medarex each may be referred to herein individually as a “Party”
or, collectively, as the “Parties”.


 


A.            WHEREAS, Medarex and Celldex have entered
into that certain Assignment and License Agreement effective as of April 6,
2004 (the “Assignment and License Agreement”), and


 


B.            WHEREAS, Medarex and Celldex have entered
into that certain Research and Commercialization Agreement effective as of April 6,
2004 (the “RCA”); and


 


C.            WHEREAS, subject to the terms and conditions
of this Amendment No. 1, the Parties desire to amend the terms of the
Assignment and License Agreement as of Amendment No. 1 Date to:  (i) provide for the addition of the [
**** ] Antibodies (as defined below) as new Licensed Royalty-Bearing Antibodies
under the Assignment and License Agreement, and provide for the grant to
Celldex of an exclusive commercial license with respect to the [ **** ]
Antibodies, (ii) provide for the assignment to Celldex of the [ **** ]
Antibody Technology (as defined below) and (iii) provide to Celldex the
opportunity to make certain exchanges of antibodies between the Assignment and
License Agreement and the RCA.


 


NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Parties, the
Parties agree as follows:


 


1.             Amendment of the Assignment and
License Agreement.  The Parties hereby agree to amend the terms
of the Assignment and License Agreement by this Amendment No. 1 as
provided below.


 


1.1           Commercial License to [ **** ]
Antibodies.


 


(a)           Section 1.25 of the Assignment and License Agreement is hereby
amended by inserting the following sentence between the second and third
sentences thereof:  “Licensed
Royalty-Bearing Antibodies shall also include, without limitation:  (i) the fully


 

















 


CONFIDENTIAL


 


human antibody known as [ **** ], (ii) the fully human antibody
known as [ **** ] and (iii) the fully human antibody known as [ **** ]
(collectively, the “[ **** ] Antibodies”).” 
The variable regions of the [ **** ] Antibodies are defined by
sequence in Appendix 1.


 


(b)           For the avoidance of doubt, the exclusive license granted to Celldex
pursuant to Section 3.1.2 of the Assignment and License Agreement (as amended
pursuant to Section 1.1(c) below), as well as all other provisions of
the Assignment and License Agreement relating to the Licensed Royalty-Bearing
Antibodies, shall be deemed to apply to the [ **** ] Antibodies.


 


1.2           Assignment of [ **** ] Antibody
Technology.


 


(a)           Section 1.4 of the Assignment and License Agreement is hereby
amended by adding the following sentence to the end thereof:  “In addition: 
(i) the definition of Antibody Targeting Patents shall be deemed to
include, without limitation, the Patents listed under the heading “[ **** ]Targeting
Technology” on Schedule 2.1.8 attached hereto within thirty (30) business days
after the Amendment No.1 Date, and (ii) the defintions of Antibody
Targeting Technology and Antibody Targeting Know-How shall be deemed to be
revised accordingly.”


 


(b)           Section 1.8 of the Assignment and License Agreement is hereby
amended by adding the following sentence to the end thereof:  “In addition, the definition of Anti-Mannose
Receptor HuMAb Antibody shall include, without limitation, all antibodies
described under the heading “[ **** ] Antibodies” on Schedule 2.1.8 attached
hereto within thirty (30) business days after the Amendment No. 1 Date.  The parties acknowledge and agree that any
such [ **** ] Antibodies shall be treated as Anti-Mannose Receptor HuMAb
Antibodies for all purposes under this Agreement (including, but not limited
to, the financial terms hereof), without regard to the fact that such [ **** ]
Antibodies are not necessarily directed against mannose receptor antigens.”


 


(c)           Section 2.1 of the Assignment and License Agreement is hereby
amended by deleting the word “and” from the end of Section 2.1.6,
replacing the period at the end of Section 2.1.7 with the word “; and” and
adding the following as a new Section 2.1.8:  “the Patents, Know-How, documentation,
clincial and toxicology data and other rights and assets identified on Schedule
2.1.8 attached


 


2

















 


hereto within thirty (30) business days after the Amendment No.1 Date
(collectively, the “[ **** ] Antibody Technology”).


 


(d)           A further sentence is hereby added to the new Section 2.1.9 to
read in its entirety as follows:  “The
Parties agree that they shall work together in good faith to generate and agree
upon a Schedule 2.1.8 to be attached to this Amendment No.1 within thirty (30)
business days after the Amendment No.1 Date; provided, however, that any
dispute between the Parties with respect the contents of such Schedule 2.1.8
shall be resolved pursuant to the terms of Section 10.4.  The Parties intend to include on Schedule
2.1.8, and Medarex will use commercially reasonable efforts to identify, all
Patents, Know-How, biological materials, documentation, clinical and toxicology
data relating to [ **** ] antibodies, and all fusion proteins and bi-specific
antibodies containing [ **** ] antibodies (so long as they do not contain other
proprietary molecules that are not licensed to Celldex), in each case to the
extent held by Medarex.  Schedule 2.1.8
may from time to time be updated by the Parties in accordance with the
principals set forth in Section 2.7 below.”


 


(e)           The Parties agree that, with respect to the disclosure and transfer of
information, and the provision of assistence, with respect to the [ **** ]
Antibody Technology, the time periods set forth in Sections 2.5.1, 2.5.2, and 2.5.3
of the Assignment and License Agreement shall be thirty (30) business days and
that the time periods in Sections 2.5.1, 2.5.2, 2.5.3 and 2.6 shall run from
the Amendment No. 1 Date.


 


1.3           Antibody Exchange Rights. 
A new Section 3.1.3 shall be added to the Assignment and License
Agreement to read in its entirety as follows:


 


“3.1.3      Exchange of
Antibodies.  In the event that Medarex has granted an
Exclusive Commercial License (as defined in the RCA) to Celldex under Section 4.3.1
of the RCA with respect to a designated Licensed Antibody (as defined in the
RCA) and, at Celldex’s sole discretion, Celldex desires to exchange such
Licensed Antibody for a designated Licensed Royalty-Bearing Antibody (each, an “Antibody
Exchange”), then during the term of this Agreement and the RCA, and so long as
each such agreement has not expired or terminated, upon thirty (30) days prior
written notice to Medarex, which notice shall identify each such antibody to be
subject to the Antibody Exchange and provide the amino acid sequence of each
such antibody to be subject to the Antibody Exchange, Celldex shall have the
right to make such Antibody Exchange. 
Celldex may elect to make a total of two (2) such Antibody
Exchanges.  An Antibody Exchange shall be
deemed to have been completed upon receipt


 


3

















 


by Medarex of the
written notice herein described.  Upon
completion of an Antibody Exchange, (i) the Licensed Antibody subject to
the exchange shall thereafter be a Licensed Royalty-Bearing Antibody and all of
the terms and conditions of this Agreement, including without limitation the
financial terms, with respect to a Licensed Royalty-Bearing Antibody shall
apply with respect to such antibody, and (ii) the Licensed Royalty-Bearing
Antibody subject to the exchange shall thereafter be a Licensed Antibody and
all of the terms and conditions of the RCA, including without limitation the
financial terms, with respect to a Licensed Antibody shall apply with respect
to such antibody.  For the avoidance of
doubt, Celldex shall not have any obligation to pay a license fee under Section 5.3
of the RCA in connection with an Antibody Exchange.”


 


2.             Miscellaneous.


 


2.1           No Other Changes. 
Except as expressly provided in this Amendment No. 1, all terms of
the Assignment and License Agreement shall remain in full force and effect.


 


2.2           Counterparts.  This
Amendment No. 1 may be executed in two or more counterparts, each of which
shall be deemed an original, but both of which together shall constitute one
and the same instrument.


 


(signature page follows)


 


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IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1
to be executed by their respective authorized officers.


 


	
  MEDAREX, INC.

  	
  GENPHARM INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
                  /s/
  Ronald A. Pepin

  	
   

  	
  By:

  	
                  /s/
  Ronald A. Pepin

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
            Ronald A.
  Pepin, Ph.D.

  	
   

  	
  Name:

  	
            Ronald A.
  Pepin, Ph.D.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
     Sr. VP, Business Development

  	
   

  	
  Title:

  	
     Sr. VP, Business Development

  	
   

  
	
   

  
	
  CELLDEX THERAPEUTICS, INC.

  
	
   

  
	
  By:

  	
         /s/ Anthony S. Marucci

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
    Anthony S. Marucci

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
     VP & CFO

  	
   

  
																



 


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SCHEDULE 2.1.8


 


[ **** ] TECHNOLOGY


 


[To be agreed by the Parties and attached to Amendment No.1 within
thirty (30) business days after the Amendment No.1 Date.]


 


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APPENDIX 1


 


Variable region sequences of [ **** ] Antibodies


[ **** ]


 


7