EXHIBIT 10.50


 










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


 


RESTRUCTURING AGREEMENT


 


 


This RESTRUCTURING AGREEMENT (“Agreement”) is
entered into as of February 2, 2005 (the “Effective Date”) by and among Baxter
Healthcare S.A., a corporation organized under the laws of Switzerland (“BHSA”),
Baxter Healthcare Corporation, a company organized under the laws of Delaware (“BHC”),
and Cerus Corporation, a company organized under the laws of Delaware (“Cerus”).  BHSA and BHC are sometimes collectively
referred herein to as “Baxter.”  The
foregoing entities are sometimes referred to herein individually as a “Party”
and collectively as the “Parties.”


 


WHEREAS, BHC and
Cerus are parties to a Development, Manufacturing and Marketing Agreement,
dated as of December 10, 1993, as amended to the date hereof (the “Platelet Agreement”)
relating to products referred to herein as the “Platelet System” and to a
Development, Manufacturing and Marketing Agreement, dated April 1, 1996, as amended and restated June 30, 1998, as
further amended to the date hereof (the “RBC/FFP Agreement”) relating to
products referred to herein as the “Plasma System” and the “RBC System;” (The
Platelet System, the Plasma System and the RBC System are sometimes referred to
herein individually as a “System” and collectively as the “Systems”, and such
terms are intended to have the same meanings herein as those set forth in the
License Agreement and the Manufacturing and Supply Agreement being entered into
concurrently herewith.)


 


WHEREAS,
concurrently
with this Agreement, Baxter Capital Corporation and Cerus are entering into an
Amendment, Mutual Release and Settlement Agreement (the “BCC Settlement
Agreement”) relating to a Loan and Security Agreement, dated as of
November 15, 2002 (the “Loan Agreement”);


 


WHEREAS, BHA and
BHSA are parties to a Research and Development Cost Sharing Agreement, dated
January 1, 2001, for the designing, developing, manufacturing and marketing of
various blood therapy products, including those related to the INTERCEPT Blood
System;


 


WHEREAS, Baxter and
Cerus desire to restructure the arrangements provided for in the Platelet
Agreement and the RBC/FFP Agreement and resolve certain disputes that have
arisen concerning those agreements, and in furtherance of such objectives
Baxter and Cerus are entering into a License Agreement, Manufacturing and
Supply Agreement, Transition Services Agreement, and a Trademark License
Agreement (to which Baxter International Inc. is also a party) concurrently
with this Agreement (such agreements referred to collectively as the “Concurrent
Agreements”);


 


WHEREAS,
as used in this Agreement, “Commercialization Rights” means, as to a particular
country or region, (a) as to Baxter, the right and responsibility of Baxter to


 


	
  EXECUTION

  	
  RESTRUCTURING AND SETTLEMENT AGREEMENT

  



 










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


 


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market, distribute and sell the
Platelet System pursuant to the Platelet Agreement, and the Plasma System
pursuant to the RBC/FFP Agreement (and as further provided under this
Agreement), in that country or region; or (b) as to Cerus, all rights of Cerus hereunder and under the
Concurrent Agreements upon termination of Baxter’s Commercialization rights in
that country or region.  For the purposes
of this agreement, references to termination of Baxter Commercialization
Rights, or to Cerus gaining Commercialization Rights, in a particular country
or region means that licenses and related rights under the Platelet Agreement
or the RBC/FFP Agreement, as the case may be, have been released and
relinquished to Cerus, pursuant to Section 4 of this Restructuring Agreement;


 


NOW THEREFORE, in
consideration of the premises and the covenants set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows;


 


1.                                       CONDITIONS.  SUBSEQUENT PAYMENT.


 


1.1                                 Baxter’s Conditions
Precedent.   The effectiveness of this Agreement and the
obligations of Baxter hereunder are subject to the satisfaction, or waiver by
Baxter, of the following conditions precedent:


 


(a)                                  Cerus shall have delivered, or caused to be
delivered, original fully completed, dated and executed originals of this
Agreement and the Concurrent Agreements; and


 


(b)                                 All conditions to be satisfied by Cerus
pursuant to Section 7(a) of the BCC Settlement Agreement shall have been
satisfied.


 


1.2                                 Cerus’ Conditions Precedent.  The
effectiveness of this Agreement and the obligations of Cerus hereunder are
subject to the satisfaction, or waiver by Cerus, of the following conditions
precedent:


 


(a)                                  Baxter shall have delivered, or caused to be
delivered, original fully completed, dated and executed originals of this
Agreement and the Concurrent Agreements;


 


(b)                                 All conditions to be satisfied by BCC
pursuant to Section 7(b) of the BCC Settlement Agreement shall have been
satisfied.


 


                                                1.3                                 Subsequent Payment. 
Baxter shall pay to Cerus the amount of [ * ]  Dollars ($[ * ]  ) at the time of the next [ * ]  , which shall occur not later than [ * ]  .  In
connection with such payment, BHC represents to Cerus that no payments have
been made by BHC to BCC respecting Revenue Sharing Payments (as defined in the
Platelet Agreement) due to Cerus with respect to Platelet System sales in the
fourth quarter of 2004 (or the first quarter of 2005), any rights to Revenue
Sharing payments now reverting to Cerus.


 










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


 


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2.                                       COMMERCIALIZATION RIGHTS, MARKET ACTIVITIES AND FUNDING.


 


2.1                                 EU Commercialization Rights Through 2006. Subject
to the terms of this Agreement, Baxter shall maintain Commercialization Rights
for the Platelet System under the Platelet Agreement and the Plasma System
under the RBC/FFP Agreement through December 31, 2006 in the countries listed
on Exhibit A to this Agreement, (the “European Territory”).  Pursuant to such Commercialization Rights,
Baxter shall (a) continue activities to achieve national and local approvals
and gain market penetration of the Platelet System, and (b) activities to
achieve national and local approvals (assuming CE mark approval) and market
penetration of the Plasma System, in the countries of the European
Territory.  These activities will include
pre-launch activities for the Plasma System to be approved by the Governance
Committee.   Through December 31, 2006
and any Extension Period, as defined below, Baxter will provide, at its expense
all the necessary sales and marketing, distribution, regulatory,
clinical/education and governmental affairs support to implement the plan to be
approved by the Governance Committee.  To
carry out these activities, Baxter agrees to commit, at its own expense,
through December 31, 2006, Baxter personnel comprising not less than [ * ]  full-time-equivalent
(FTE) employees in the European Territory in the areas itemized above,
including not less than [ * ] employees,
dedicated full-time, and [ * ] employees
dedicated half-time, to marketing
sales activities.


 


2.2                                 EU Commercialization Rights Extension 2007 — 2008.


 


(a)                                  Baxter
will have the option to continue Commercialization Rights for the Platelet
System and the Plasma System in the European Territory from January 1, 2007
through December 31, 2008 (together with any the “Extension Period”); provided
that prior to [ * ]  , Baxter (i) provides Cerus with written
notice of such election, (ii) the Platelet Agreement or the RBC/FFP Agreement
has not been previously terminated pursuant to Section 12.1 hereof, and (iii)
Baxter provides Cerus with assurance, satisfactory to Cerus in its reasonable
judgment (and which could include further escrow of funds for
marketing/promotional expenditures), that the funds and resources will be
available as committed.  As used herein,
the term “Extension Period” will mean such period of extension and any period
of further extension pursuant to Section 2.3 below.  In the event that such conditions are not met
by [ * ], Baxter’s Commercialization
Rights shall terminate effective January 1, 2007.


 


(b)                                 If
Baxter exercises the election in Section 2.2(a), Baxter will be obligated, in
each of calendar years 2007 and 2008, to (i) expend not less than [ * ] Dollars ($[ * ]) per year
on marketing/promotional activities in the European Territory for the Platelet
System and Plasma System, to be allocated between such programs as approved by
the Governance Committee, and (ii) commit, at Baxter’s own expense, not less
than [ * ] full-time-equivalent (FTE)
employees in the European Territory in the areas itemized above, including not
less than [ * ] employees, dedicated full-time
and [ * ] employees dedicated half-time, to
marketing and sales activities for the Platelet System, and not less than [ * ] additional employees dedicated full-time to marketing
and


 










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


 


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sales activities for the Plasma
System, unless these commitments are revised through mutual agreement at the
Governance Committee. However, if the Plasma System has not then received CE
mark approval, and is not expected to receive such approval within such
calendar year, the total expenditures for such year will be [ * ] Dollars ($[ * ]) and the [ * ] additional employees dedicated to marketing and sales
activities for the Plasma System shall not be required for such calendar year.


 


2.3                                 EU Commercialization
Rights Extension Post-2008.


 


(a)                                  Subject
to Section 8.1 hereof, Baxter will have the option to continue
Commercialization Rights for the Platelet System and the Plasma System in the
European Territory from January 1, 2009 through December 31, 2010 and for
subsequent successive two-year periods; provided
that prior to [ * ] of the
calendar year preceding the commencement of any such period, Baxter (i)
provides Cerus with written notice of such election, (ii) the Platelet
Agreement or the RBC/FFP Agreement has not been previously terminated pursuant
to Section 12.1 hereof, and (iii) Baxter provides Cerus with assurance,
satisfactory to Cerus in its reasonable judgment (and which could include
further escrow of funds for marketing/promotional expenditures), that the funds
and resources will be available as committed. 
In the event that such conditions are not met by such February 28,
Baxter’s Commercialization Rights shall terminate effective [ * ] of the succeeding calendar year.


 


(b)                                 If
Baxter exercises the election in Section 2.3(a), Baxter will be obligated, in
each of calendar years of the further Extension Period, to (i) expend not less
than [ * ] Dollars ($[ * ])
per year on marketing/promotional activities in the European Territory for the
Platelet System and Plasma System, to be allocated between such programs as
approved by the Governance Committee, and (ii) commit, at Baxter’s own expense,
not less than [ * ] full-time-equivalent (FTE)
employees in the European Territory in the areas itemized above, including not
less than [ * ] employees, dedicated full-time
and [ * ] employees dedicated half-time, to
marketing and sales activities for the Platelet System, and not less than [ * ] additional employees dedicated full-time to marketing
and sales activities for the Plasma System, unless these commitments are
revised through mutual agreement at the Governance Committee.  However, if the Plasma System has not then
received CE mark approval, and is not expected to receive such approval within
such calendar year, the total expenditures for such year will be [ * ] Dollars ($[ * ]) and the [ * ] additional employees dedicated to marketing and sales activities
for the Plasma System shall not be required for such calendar year.


 


2.4                                 Reporting.                                      The
Baxter INTERCEPT Marketing Manager for Europe will be the primary contact for
the Governance Committee, and will be responsible for reporting on the status and
progress of the agreed-upon activities. 
Baxter will provide a monthly report to Cerus on market activities,
including status and progress.


 


2.5                                 Intentionally Omitted.


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
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2.6                                 Escrow Account.


 


(a)                                  Baxter
will deposit in a joint BHC/Cerus escrow account (the “Escrow Account”)
pursuant to an Escrow Agreement to be entered into substantially in the form of
Exhibit B to this Agreement (the “Escrow Agreement”):


 


i.                                          [ * ] Dollars ($[ * ]) on or
before the [ * ] day following [ * ];


 


ii.                                       [ * ] Dollars ($[ * ]) on or
before [ * ]; Baxter represents that this
amount equals the difference between (x) [ * ] Dollars
($[ * ]) and (y) [ * ]
by Baxter in the third and fourth calendar quarters of 2004 on marketing and
promotional activities for the INTERCEPT Blood System, pursuant to the plan
outlined and agreed upon by the Governance Committee, not including Baxter FTE
and fringe benefit expenses; and


 


iii.                                    [ * ] Dollars ($[ * ]) on or
before [ * ].


 


(b)                                 The
Governance Committee will meet periodically (not less frequently than
quarterly) to review and approve expenditures that have been made for
marketing/promotional activities to assure consistency with the
previously-approved budget and plan. 
Upon such approval, duly authorized signatures of Cerus and BHC will
jointly sign instructions to the escrow agent to release funds to the Party
(BHC, BHSA or Cerus) that incurred the expenditures.  With respect to expenditures pursuant to
Section 2.8, a duly authorized signatory of Cerus may solely sign instructions
to the escrow agent to release funds to BHC for qualifying expenditures under
Section 2.8.


 


2.7                                 2005–2006 Commitment; Release From Escrow For
Marketing/Promotional Activities.  Amounts
deposited into the Escrow Account in 2005 and 2006 will be used to fund
marketing/promotional expenses for the 2005 calendar year and 2006 calendar
year, respectively, as further discussed in Section 8.1 below.  For the avoidance of doubt, these funds will
be over and above, and will not be used to fund, Baxter FTE expenses committed
in Section 2.1 hereof; provided, however, they may fund expenses of consultants
and of additional employees (beyond the FTEs committed pursuant to Section 2.1
hereof) dedicated full-time to sales and marketing of INTERCEPT, if engagement
of such resources is approved by the Governance Committee.  Approval of marketing and promotional
expenditures will be governed by the terms of the Platelet Agreement and the
Plasma Agreement, which provide for final plans and strategies to be
established by the Management Board (now the Governance Committee) reasonably
and in good faith.  Baxter and Cerus each
agrees that the objective is to expend the full amount of these funds in each
respective calendar year, and neither will unreasonably withhold its consent to
such expenditures.


 


2.8                                 Release From Escrow For Plasma Development.  Notwithstanding the foregoing,
Cerus may, in its sole discretion, direct that an amount not exceeding Two
Million Two Hundred Thousand Dollars ($2,200,000) be released from the Escrow
Account to reimburse Baxter for activities that Baxter may undertake at Cerus’
request to


 










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


 


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continue development activities
for the Plasma System directed toward CE Mark approval in the European
Territory, and related manufacturing and validation, thereby releasing Cerus of
the obligation for such payment from Cerus’ own funds.  Not more than (a) [ * ]
Dollars ($[ * ]) of such funds will be released
in 2005 (to reimburse Baxter for activities in [ * ]),
and not more than (b) [ * ] Dollars
($[ * ]) of such funds will be released
in [ * ] (to reimburse Baxter for
activities in [ * ]).  Such release of funds will reduce the amount
of the funds in the Escrow Account that would otherwise be dedicated to
marketing/promotional expenses for the Plasma System, which the Parties agree
is [ * ] Dollars ($[ * ])
for [ * ], combined, before such
reductions.


 


2.9                                 Distribution, Payment of Unused Funds.  Subject to Section 2.7, in the
event the Governance Committee does not approve expenditure of the full amount
of the escrowed funds allocated to [ * ] in that
calendar year, or does not approve expenditure of the full amount of funds
committed pursuant to Section 2.2(b) hereof in any year of the Extension Period,
or if for any reason there are any such escrowed or committed amounts remaining
unspent at the end of any such calendar year, the amount of unspent funds in
the escrow account will be distributed equally to Baxter and Cerus within [ * ] days following the end of the calendar year.  With respect to any amounts committed
pursuant to Section 2.2 or Section 2.3 for any Extension Period (if funds
representing such amounts are not in the Escrow Account) one-half of the
amounts so committed, but unspent, in any calendar year, will be paid by Baxter
to Cerus within [ * ] days following the end of
the calendar year.


 


2.10                           Marketing Plans and Activities.  For 2005, 2006 and of each year of the
Extension Period, the joint Baxter/Cerus INTERCEPT marketing team will prepare
and present to the Governance Committee a detailed marketing plan and budget
for that calendar year for the Platelet System and Plasma System in the
countries in the European Territory where Baxter retains Commercialization
Rights.  The Governance Committee will
approve such marketing plan and budget not later than [ * ]
and [ * ] respectively of each respective
year, and will also by [ * ] agree on
a retention plan for dedicated INTERCEPT marketing personnel in the European
Territory for 2005 and 2006 and each year of any Extension Period.  The Governance Committee must approve any
subsequent changes to such plan or budget. 
Neither Baxter nor Cerus will unreasonably withhold its approval of such
plan or budget or subsequent revisions thereto. 
Cerus will not unilaterally make any commitments to any customers that
any studies will be funded by Baxter (including funding through the Escrow
Account) relative to such customers.  In
the event that Cerus does unilaterally make any such commitment, Cerus shall
bear the expense of such study.


 


2.11                           North America Commercialization Rights.


 


(a)                                  Subject
to the terms of this Agreement, Baxter shall maintain Commercialization Rights
as to the Platelet System in North America. 
It is understood that the Parties, intend to carry out discussions with
the U.S. Food and Drug Administration (“FDA”) to gain clarification whether the
Platelet System may be approved for marketing in the United States without
additional clinical or other activities,


 










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INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
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or whether additional such
activities will be required.  When such
question is answered with reasonable clarity (which the Parties anticipate will
occur at a meeting with the FDA, and will not require formal written response
from the FDA), Cerus will provide Baxter with a notice requesting Baxter to
confirm whether Baxter desires to continue to maintain Commercialization Rights
as to the Platelet System in North America. Baxter will have [ * ] days from the date of Cerus’ notice to respond by
written notice to Cerus.  If Baxter
responds that Baxter does not desire to maintain Commercialization Rights as to
the Platelet System in North America, or if Baxter fails to respond strictly
within such [ * ] day period, Baxter’s
Commercialization Rights to the Platelet System in North America will
immediately terminate upon such event.


 


(b)                                 If
Baxter’s written notice of response states that Baxter desires to maintain
Commercialization Rights as to the Platelet System in North America, then
Baxter shall have the following obligations:


 


(i)                                     Baxter
will fund one hundred percent (100%) of further clinical, development or other
activities, including without limitation Phase 3b or Phase 4 studies, if
required by the FDA for approval to market the Platelet System, and will use
commercially reasonable efforts to carry out such activities and gain such
approval;


 


(ii)                                  Baxter
will use commercially reasonable efforts to launch the Platelet System in the
United States as promptly as possible following FDA approval.  Baxter will expend not less than [ * ] Dollars ($[ * ]) per year
on marketing/promotional activities in North America for the Platelet System
during the calendar year preceding market launch and the next following
calendar year, and will expend not less than [ * ]
Dollars ($[ * ]) per year on
marketing/promotional activities in North America for the Platelet System each
calendar year thereafter.  In addition,
Baxter will commit not less than [ * ] FTEs to
sales and marketing of the Platelet System in North America.  The marketing/promotional expenses specified
above will be over and above such FTE expenses, unless otherwise agreed by the
Governance Committee.


 


2.12                           BioOne Territory Commercialization Rights.  With respect to the countries of
Japan, China (including all Special Administrative Regions), Taiwan, South
Korea, Thailand, Vietnam and Singapore (the “BioOne Territory”),
Commercialization Rights continue to the extent provided in Section 4.4 of this
Agreement; provided that if a
transaction of the nature described in Section 3.2(c) hereof is not entered
into with BioOne or another entity within [ * ] months of
the date of this Agreement; Commercialization Rights as to the Plasma System
will terminate in China (including Hong Kong and other specific administrative
regions) and Japan.  In such event, the
remainder of countries in the BioOne Territory will be considered ROW as to the
Plasma System for the purposes of this Agreement.


 


2.13                           Rest of World Commercialization Rights.


 


(a)                                  As used herein, “Rest of World” or “ROW”
means all countries other than the countries of the European Territory, North
America and the BioOne


 










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Territory, as such terms are
defined herein; provided however that certain countries may be added to the ROW
pursuant to the express provisions hereof.


 


(b)                                 Subject
to the terms of this Agreement, Baxter shall maintain Commercialization Rights
for the Platelet System under the Platelet Agreement and the Plasma System
under the RBC/FFP Agreement in the countries of the ROW through the period
provided for in this Section 2.13.


 


(c)                                  Baxter’s
Commercialization Rights for the ROW will continue in effect for the same
period as Baxter’s Commercialization Rights for the European Territory, subject
to Section 8 hereof and to the following. 
For 2005, 2006 and each year of the Extension Period, Baxter will
prepare and present to the Governance Committee a detailed marketing plan and
budget for that calendar year for the Platelet System and the Plasma System for
specific countries in the ROW.  For 2005,
such plan and budget for such specific countries will be presented not later
than [ * ] days after the Effective Date,
for approval by the Governance Committee its second calendar quarter meeting
(if not approved sooner).  For subsequent
calendar years, such budget and plan will be presented for approval by the
Governance Committee not later than [ * ] of each
respective year.  Not later than [ * ] of each succeeding year, the Governance Committee will
review whether or not Baxter has performed the activities specified in the
marketing plan and budget previously approved for each such country.  If Baxter has not performed the specified
activities in any country, Cerus may elect, by written notice to Baxter, to
terminate Baxter’s Commercialization Rights in such country.


 


(d)                                 If
the marketing plan and budget for a particular ROW country presented by Baxter
pursuant to Section 2.13(c) above is not approved by the Governance Board,
Cerus may elect, by written notice to Baxter, to terminate Baxter’s
Commercialization Rights in such country. 
If Baxter and Cerus disagree at the Governance Committee level on
whether the plan should be approved, the matter will be submitted for
arbitration pursuant to Section 15.12 hereof.


 


(e)                                  If
Baxter does not provide a marketing plan and budget for any year, as provided
in Section 2.13(c) above for a country in the ROW, Cerus may request that
Baxter provide such a plan and budget for such country.  If Baxter does not provide such a plan for
such country within [ * ] days
after such request, Cerus may elect, by written notice to Baxter, to terminate
Baxter’s Commercialization Rights in such country.


 


(f)                                    If
at any time for any reason, the rights granted to a partner revert to Baxter
and Cerus with respect to any country of the ROW, then Baxter’s
Commercialization Rights will automatically terminate as to such country, which
shall be thereafter considered a Reverted Right Region.


 


(g)                                 Subject
to Section 4.3, Baxter’s Commercialization Rights will automatically terminate
as to all ROW countries upon termination of Baxter’s Commercialization Rights
as to the European Territory, upon non-exercise by Baxter of its election
pursuant to Section 2.3 (a); provided, however, that if the termination of


 










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European Territory
Commercialization Rights occurs through exercise by Cerus of the European
Territory Buy-Out rights pursuant to Section 8.1 hereof, Cerus may obtain such
rights as to the ROW country only through exercise of its ROW country Buy-Out
Rights pursuant to Section 8.2 hereof.


 


2.14                           Condition to Extensions.  It shall be a condition to exercise of Baxter’s
options to extend any Commercialization Rights into any Extension Period that
Baxter shall be in compliance, in all material respects, with the requirements
of this Agreement, the Platelet Agreement, the RBC/FFP Agreement (as to Plasma
System matters) and the Concurrent Agreements at the time of such exercise.


 


3.                                       DEVELOPMENT.


 


3.1                                 Platelets.


 


(a)                                  Cerus
and Baxter acknowledge and agree that the Cooperative Development Work, as
defined in the Platelet Agreement:


 


(i)                                     is
completed, effective January 1, 2005, with respect to activities directed
toward the European Territory;


 


(ii)                                  continues
with respect to activities directed toward North America, subject to the
following:  After the Effective Date, the
Cooperative Development Work will be initially limited to preparing (to the
extent not already prepared), and submitting to the FDA,  such documents as Cerus deems appropriate,
and participating in one or more meetings with the FDA.  The purpose of such activities is to gain
clarification whether the Platelet System may be approved for marketing in the
United States without additional clinical or other activities, or whether
additional such activities will be required. 
Cerus will have the primary discretion to determine the strategy for
communications with the FDA, subject to Baxter’s approval, and Baxter will
conduct such communications, including meetings, with the participation of
Cerus.  Each Party will bear its own
expenses of such activities.  Following
such activities, if Baxter, pursuant to the Section 2.11(b), provides notice
that Baxter desires to maintain Commercialization Rights as to the Platelet
System in North America, then the Cooperative Development work will continue
(if additional development activities are required) with Baxter thereafter
bearing all costs of such activities as provided in Section 2.11(b)(i).  If, pursuant to Section 2.11(a), Baxter does
not maintain Commercialization Rights as to the Platelet System in North
America, the Cooperative Development Work will then be considered terminated as
to the Platelet System in North America.


 


(b)                                 With
respect to the BioOne Territory, Baxter and Cerus acknowledge that development
and commercialization will be carried on by BioOne Corporation (“BioOne”)
pursuant to agreements previously entered into with BioOne BHC, BHSA and Cerus
each agrees to perform its obligations under such agreements in support of
BioOne’s activities. Such activities will not be considered Cooperative
Development work that is subject to joint funding under the Platelet Agreement.


 










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(c)                                  With
respect to activities concerning the Platelet System directed to the ROW, the
parties will pursue commercialization as provided in Section 2.13 hereof.  Such activities will be at Baxter’s expense
and will not be considered Cooperative Development work that is subject to
joint funding under the Platelet Agreement, unless the parties otherwise agree
at the Governance Committee level.  It is
understood that Baxter has no obligation to make any System modifications, or
fund any clinical studies, that may be necessary to gain approval in any ROW
country, but Baxter agrees that the expenses of any regulatory personnel and
activities in such country will be solely Baxter’s responsibility.


 


3.2                                 Plasma.


 


(a)                                  Cerus
and BHC acknowledge and agree that the Cooperative Development Work, as defined
in the RBC/FFP Agreement, for the Plasma System;


 


(i)                                     continues
with respect to activities directed toward obtaining CE Mark in the European
Territory;


 


(ii)                                  is
terminated, effective January 1, 2005, with respect to activities directed to
North America;


 


(b)                                 With
respect to activities directed toward obtaining CE Mark for the Plasma System
and related manufacturing and validation, Baxter agrees, at Cerus’ request and
expense, to carry out the further development activities set forth on Exhibit C
to this Agreement within the time schedules set forth on such Exhibit for such
activities.  The charge for such
activities will not exceed the amount set forth on such Exhibit, provided that
the scope of such activities is not expanded. 
Cerus agrees to fund those Baxter activities, as well as Cerus
activities, directed toward completing the application for CE Mark, including
through funding from the Escrow Account pursuant to Section 2.8, above.


 


(c)                                  With
respect to the countries of the BioOne Territory, it is acknowledged that Cerus
has been discussing with BioOne and Baxter a potential transaction related to
the Plasma System that is similar to the transaction previously entered into
for the Platelet System.  In the event
such a transaction is entered into, it is anticipated that development and
commercialization will be carried on by BioOne. 
Pending the completion of the transactions, the Parties do not expect
that any Cooperative Development work will be funded specifically directed to
the countries of the BioOne Territory. 
The parties agree to cooperate to supply information to BioOne and
engage in discussions with BioOne to facilitate the completion of such
transaction. Such activities will not be considered Cooperative Development
work that is subject to funding under the RBC/FFP Agreement.  In the event that such transaction is not
entered into with BioOne or another entity within [*] months of the date of
this Agreement, the Cooperative Development Work for the Plasma System will be
considered terminated with respect to the countries of the BioOne Territory.


 










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


 


10





















 


(d)                                 With
respect to activities concerning the Plasma System directed to the ROW, the
parties will pursue commercialization as provided in Section 2.13 hereof.  Such activities will be at Baxter’s expense
and will not be considered Cooperative Development work that is subject to
joint funding under the RBC/FFP Agreement, unless the parties otherwise agree
at the Governance Committee level.  It is
understood that Baxter has no obligation to make any System modifications, or
fund any clinical studies, that may be necessary to gain approval in any ROW
country, but Baxter agrees that the expenses of any regulatory personnel and
activities in such country will be solely Baxter’s responsibility.


 


3.3.                              Red Blood Cells.  Cerus and BHC acknowledge and agree that the
Cooperative Development Work, as defined in the RBC/FFP Agreement, for the RBC
System is terminated, effective January 1, 2005, with respect to activities
directed to all countries of the world; provided
that Baxter shall promptly complete in 2005 the chronic and acute
close-out clinical trial reports on the RBC program that had been scheduled for
completion in 2004, and furnish such reports to Cerus, which shall be at Baxter’s
own expense with respect to any activities in 2005.


 


4.                                       RELINQUISHMENT OF RIGHTS.


 


4.1                                 Rights Relinquished. 
BHC and BHSA each hereby releases and relinquishes to Cerus
all of its licenses and related rights under the Platelet Agreement and the
RBC/FFP Agreement to Cerus Patents, Cerus Know-How, Cerus Licensed Patents,
Cerus Licensed Know-How and Cerus Compounds, Cerus Inventions, Cerus Project
Inventions and Contractor Inventions, as such terms are defined in such
agreements respectively, as follows in the following regions (the “Reverted
Right Regions,” each a “Reverted Right Region” as to the particular System or
Systems):


 


(a)                                  Plasma.  Under
the RBC/FFP Agreement, as to the field of inactivation of pathogens in plasma
components of blood: all licenses and related rights in North America;


 


(b)                                 Red Blood Cells. 
Under the RBC/FFP Agreement, to the field of inactivation of
pathogens in red blood cells: all licenses and related rights worldwide;


 


(c)                                  Other.  Under
the RBC/FFP Agreement, as to any other part of the Field (as such term is
defined in such agreement) that is not mentioned in Sections 4.1(a) and 4.1(b)
above: all licenses and related rights worldwide.


 


4.2                                 Rights Relinquished on Subsequent Termination of
Commercialization Rights.  Effective
upon the termination of Commercialization Rights as to the Platelet System or
the Plasma System in any country as to which licenses and rights were not
previously released and relinquished pursuant to Section 4.1, BHC and BHSA each
will automatically release and relinquish to Cerus all of its licenses and
related rights under the Platelet Agreement and the RBC/FFP Agreement, as the
case may


 










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


 


11





















 


be, to Cerus Patents, Cerus
Know-How, Cerus Licensed Patents, Cerus Licensed Know-How and Cerus Compounds,
Cerus Inventions, Cerus Project Inventions and Contractor Inventions, except to
the extent that Commercialization Rights are expressly retained by Baxter
hereunder after such date.  At such time,
such country will become part of the Reverted Right Regions.


 


4.3                                 Rights Retained for Third Party Agreements.  If an agreement is reached, on or before [ * ], or during [ * ], if
applicable, with a partner or partner(s) for commercialization of the Platelet
System or the Plasma System in any country (outside the BioOne Territory) in
which Baxter then retains Commercialization Rights for such System, licenses
and related rights in such country will remain subject to the Platelet
Agreement or the RBC/FFP Agreement, case may be, as necessary to support such
third party agreement. (Any such third party agreement will require the
approval of Baxter and Cerus.) Revenues
from such agreement [ * ].  However, if at any time for any reason, the
rights granted to such third party revert to Baxter/Cerus with respect to such
country, then Baxter’s license and related rights shall automatically be
released and relinquished to Cerus as to such System in such country, which
shall be thereafter considered a Reverted Right Region.  If the Parties are unable to complete such
mutually acceptable agreements in a country on or before the date on which
Baxter’s Commercialization Rights terminate in such country, such country will
become part of the Reverted Rights Region as of the date of termination of the
Commercialization Rights.


 


4.4                                 Rights Retained For Performance of BioOne Agreements. Notwithstanding
Section 4.2, Baxter will retain any licenses and related rights necessary to
support the licenses granted by Baxter to BioOne and to enable Baxter to carry
out its commitments (a) to BioOne under the BioOne Agreements concerning the
Platelet System, and (b) under future agreements (with respect to the BioOne
Territory) that may be entered into between Cerus, Baxter and BioOne or another
entity pursuant to the terms of the Agreement. 
However, if at any time for any reason, the rights granted to BioOne or
other entity as to the Platelet System or the Plasma System revert to
Baxter/Cerus with respect to China or Japan, then Baxter’s license and related rights
shall automatically be released and relinquished to Cerus as to such country,
which shall be thereafter considered a Reverted Right Region as to such System
(subject to Baxter’s rights under section 5.6 of the License Agreement).  If such rights revert to Baxter/Cerus as to a
System in any other country of the BioOne Territory, such country will
thereafter be considered part of ROW for the purposes of this Agreement.


 


4.5                                 Regulatory Transfer. 
Baxter hereby transfers to Cerus the regulatory rights and
future responsibility for the Platelet System, the Plasma System and the RBC
System in the respective Reverted Rights Regions applicable to each such System
as of such date. Baxter will make a prompt subsequent orderly transfer of the
related regulatory documents to Cerus.


 


4.6                                 Regulatory Transfer on Other Events.  Upon any event resulting in
addition of a country or region to the Reverted Rights Regions as to any
System, there shall be automatically transferred to Cerus the regulatory rights
and future responsibility


 










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


 


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for such Systems in such
country or region.  Baxter will, as early
as reasonably possible, make an orderly transfer of the related regulatory
documents to Cerus.


 


4.7                                 Cross-Reference to Baxter Regulatory Files.  Following the transfers of
regulatory rights and responsibilities described above, Cerus shall continue to
be able to cross-reference any regulatory files of Baxter as necessary or
useful to support regulatory submissions for the Platelet System the Plasma
System and the RBC System.  Baxter shall,
at Cerus’ request, execute and provide to Cerus such other documents as are
necessary or appropriate to notify any regulatory agency of such authorization.


 


5.                                       LICENSE AGREEMENT; TRADEMARK LICENSE.


 


5.1                                 License Agreement. 
Concurrently with this Agreement, Baxter and Cerus are
entering into a License Agreement (the “License Agreement”) whereby Baxter
licenses to Cerus certain rights to certain patents, know-how and materials,
all as described in the License Agreement, related to the INTERCEPT Blood
System in the Reverted Rights Regions.


 


5.2                                 No Diligence Obligations.  For the purpose of dispute avoidance, it is
agreed that Cerus has no diligence obligations to develop or commercialize
products under this Agreement or the License Agreement, except as set forth in
Section 3.2(b) concerning activities related to the application for CE Mark for
the Plasma System.


 


5.3                                 Trademark License Agreement.  Concurrently with this Agreement, Baxter and
Cerus are entering into a Trademark License Agreement (the “Trademark License”)
whereby certain rights in the INTERCEPT Blood mark, other marks that include
the INTERCEPT name, and any designs associated therewith, are licensed to Cerus
in the countries in which Cerus gains Commercialization Rights.


 


6.                                       MANUFACTURING AND SUPPLY.


 


6.1                                 Platelets and Plasma in the Countries Where Baxter
Retains Commercialization Rights.


 


(a)                                  For
the purpose of clarity, so long as Baxter retains Commercialization Rights
hereunder for the Platelet System or the Plasma System, as the case may be, for
a particular country or region, Baxter will continue to manufacture Platelet
Systems and related products as provided in the Platelet Agreement, and Plasma
Systems and related products as provided in the RBC/FFP Agreement, for such country or region, as well as
sets for use in development and clinical testing of such Products in such
country or region.  Except for costs
Cerus has previously expressly agreed to incur in connection with design transfer
for relocation of Plasma System manufacturing from [ * ]
to [ * ], Baxter will bear all costs of
relocation and revalidating manufacturing facilities.  Any costs involved with such relocation will
not increase the Cost of Goods to Cerus over the Cost of Goods that was in
effect as to manufacture of any System at the previous location.


 










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


 


13





















 


(b)                                 Notwithstanding
Section 6.1(a), the Parties will cooperate to attempt to identify suppliers
that could manufacture or assemble complete Platelet Sets and Plasma Sets at
lower cost than Baxter’s Cost of Goods and at equal or superior quality to
Baxter’s manufacture or assembly.  (Such
supplier would be permitted to obtain at cost Baxter raw materials for such use
in manufacture or components for use in assembly).  In the event that the Parties’ identify such
a supplier, or Cerus individually identifies such a supplier, Cerus may provide
written notice to Baxter of its request that Baxter utilize such supplier in
order to reduce the Cost of Goods for a particular System.  (Cerus may provide such notice, however, only
if Baxter has elected to extend its Commercialization Rights into an Extension
Period.) Within [ * ] months of its receipt of
such notice Baxter shall either (a) reduce its Cost of Goods for the particular
System to be no greater than that which would pertain by use of such supplier,
or (b) commence payment to Cerus of additional Revenue Sharing Payments (as
defined under the Platelet Agreement and the RBC/FFP Agreement) equal to the
additional amounts that Cerus would receive if the supplier were utilized, or
(c) commence transition to such supplier and thereafter use commercially
reasonable efforts to expeditiously complete such transition.  As used herein, the terms “Platelet Sets” and
“Plasma Sets” shall mean “Inactivation Packages” (as defined in the Platelet
Agreement and the RBC/FFP Agreement) for the Platelet System and the Plasma
System, respectively.


 


6.2                                 Manufacturing and Supply Agreement.  To assure Cerus a supply of
products for a certain period in those countries and regions in which Cerus
gains Commercialization Rights, Baxter and Cerus are entering into a
Manufacturing and Supply Agreement of even date herewith.


 


6.3                                 Obligations to BioOne.  Baxter agrees, for the benefit of Cerus, to
manufacture products and materials, components and subassemblies for BioOne
pursuant to the Manufacturing and Supply Agreement previously entered into with
BioOne for the Platelet System, and agreements, if any, that may be entered
into with BioOne or other party for the Plasma System, and to otherwise comply
with its obligations under the BioOne Agreements and such other agreements, if
any.


 


7.                                       TRANSITION SERVICES.  To
assure a smooth transition of rights and responsibilities concerning marketing,
sales and distribution responsibilities in any country upon termination of
Baxter’s Commercialization Rights in such country, concurrently with this
Agreement, Baxter and Cerus are entering into a Transition Services Agreement
(the “Transition Services Agreement”).


 


8.                                       CERUS BUY-OUT OF COMMERCIALIZATION RIGHTS.


 


8.1                                 European Territory Buy-Out.  If Baxter exercises the election under
Section 2.3(a) to continue Commercialization Rights into any Extension Period,
commencing with the [ * ] Extension
Period, Cerus will have the election (the “European Territory Buy-Out Rights”)
to terminate Baxter’s Commercialization Rights in the European Territory as to
the Platelet System and the Plasma System, effective as of [ * ],


 










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


 


14





















 


or as of the first day of any
subsequent Extension Period, as the case may be.  For the purpose of clarity, in such event,
Baxter’s Commercialization Rights will not continue into such Extension Period,
even though Baxter elected to so continue.  Such election will apply to the
entire European Territory, and may not be exercised on a country-by-country
basis.


 


(a)                                  To
make such election, Cerus will so notify Baxter in writing not later than the [ * ] next following the [ * ]
deadline for Baxter’s exercise of its election pursuant to Section 2.3(a).


 


(b)                                 In
consideration of such election, Cerus shall pay to Baxter an amount (the “European
Territory Buy-Out Price”) computed as follows: 
The European Territory Buy-Out Price shall be equal to (i) [ * ] times Baxter’s Adjusted Gross Margin (as defined in
Section 8.3) on sales of the Platelet System, and (ii) [ * ]
times Baxter’s Adjusted Gross Margin on sales of the Plasma System; in the
European Territory for the [ * ] months
preceding [ * ] of the calendar year of Cerus’
election notice pursuant to clause (a) immediately above.


 


8.2                                 ROW Country Buy-Out.  Cerus will have the election (the “ROW
Country Buy-Out Rights”) to terminate Baxter Commercialization Rights as to any
ROW country as of the first day of any calendar year commencing with [ * ].


 


(a)                                  To
make such election, Cerus will so notify Baxter in writing not later than July
1of the calendar year prior to the calendar year in which such termination is
to become effective.


 


(b)                                 In
consideration of such election, Cerus shall pay to Baxter an amount (the “ROW
Country Buy-Out Price”) computed as follows: 
The ROW Country Buy-Out Price for a particular country shall be equal to
(i) [ * ] times Baxter’s Adjusted Gross
Margin on sales of the Platelet System, and (ii) [ * ]
times Baxter’s Adjusted Gross Margin on sales of the Plasma System; in such
country for the [ * ] months preceding [ * ] of the calendar year of Cerus’ election notice;
provided, however, that the ROW Country Buy-Out price for any country will be
not less than the amount of Baxter’s expenditures (not including FTE costs
except for employees dedicated full-time to commercial activities concerning
the Platelet System and the Plasma System in such country) on commercial
activities dedicated to the Platelet System and the Plasma System in that
country during the [ * ] months
preceding such [ * ] date.


 


8.3                                 Adjusted Gross Margin.             As
used in this Section 8, Baxter’s Adjusted Gross Margin means Baxter’s gross
sales revenues, less product return credits and pricing adjustments, as
determined in accordance with generally accepted accounting principles,
consistently applied (GAAP) and in accordance with Baxter’s normal accounting
policies consistently applied, minus Revenue Sharing Payments (as defined in
the Platelet Agreement and the RBC/FFP Agreement) paid or payable to Cerus in
respect of such sales revenues and minus Baxter’s Cost of Goods (as
defined in such agreements and amended by this Agreement).


 










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


 


15





















 


8.4                                 Buy-Out Process. 
Baxter shall notify Cerus in writing of the amount of
Adjusted Gross Margin pertinent to computing the European Territory Buy-Out
Price or the ROW Country Buy-Out Price, as the case may be, and furnish Cerus
with the information supporting such calculation, as promptly as such
information becomes available to Baxter, following the relevant [*] date.  Cerus shall notify Baxter within [ * ] days following receipt of such notice whether Cerus
accepts such amount or disputes such amount. 
If Cerus disputes such amount, Baxter and Cerus will follow the dispute
resolution procedure provided in Section 15.12(c) hereof to determine the
amount.  Any dispute concerning the
Adjusted Gross Margin amount will not affect or delay the termination of the
respective Commercialization Rights, nor the obligation of Cerus to pay the
respective Buy-Out Price, once such amount is finally determined.


 


8.5                                 Payment Date.  The
European Territory Buy-Out Price or ROW Country Buy-Out Price will be paid not
later than the third business day of the calendar year in which the termination
of Baxter’s Commercialization Rights becomes effective pursuant to the European
Territory Buy-Out or the ROW Country Buy-Out, as the case may be.


 


9.                                       REVENUE SHARING.


 


9.1                                 Under Platelet and RBC/FFP Agreement.  Revenues from the sale of Platelet
Systems and related products, and Plasma Systems and related products, in any
country where Baxter retains Commercialization Rights, will continue to be
shared as provided in the Platelet Agreement and the RBC/FFP Agreement,
respectively, subject, however to Section 9.3 below.  In addition, during any Extension Period, in
computing Premium with respect to Plasma Systems, Baxter’s Marketing and
Administrative Expenses for any calendar year shall be limited to twelve
percent (12%) of Baxter’s Net Sales for such calendar year (as the terms “Premium,”
“Marketing and Administrative Expenses” and “Net Sales” are defined in the
RBC/FFP Agreement).


 


9.2                                 Standard Cost Calculations.  Baxter’s calculation of the standard cost of
goods for the European Platelet System and estimated cost of goods for the
Plasma System for 2005 are set forth on Exhibits C and D to the Manufacturing
Agreement.  The standard cost of goods
for subsequent calendar years will vary depending on (a) volume of manufactured
products; (b) changes to the product specification; (c) unanticipated supplier
costs; and (d) inflation or deflation. 
Cost adjustments will be made to reflect the effect of these variables,
provided that (x) adjustments due to volume are as described in Exhibit D; (y)
supplier cost increases are included only if such increase is greater than
inflation, as measured by the year-to-year change in the annual average CPI-U
index; and (z) only changes in inflation or deflation resulting in a [ * ] percent ([ * ]%) or
greater change will be reflected in an adjustment to the cost of goods.  Baxter represents that the calculation for
2005 has been made, and covenants that future calculations of Baxter’s standard
cost of goods will be made, in accordance with GAAP and Baxter’s normal
accounting practices, all consistently applied, with any estimates used in
making such calculation being made reasonably and in good faith.  The standard cost will be based upon the local
currency in the country in which the Manufactured Product is


 










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


 


16





















 


manufactured.


 


9.3                                 Adjustments to Standard Cost.


 


(a)                                  For
the purposes of this Section the capitalized terms “Revenue Sharing Payments,” “Premium,”
“Cost of Goods” and “Inactivation Package” have the definitions set forth in
the Platelet Agreement and the RBC/FFP Agreement, respectively.  In addition, the terms “Platelet Sets” and “Plasma
Sets,” as used herein, are intended to be synonymous with “Inactivation
Package,” as used in the Platelet Agreement and the RBC/FFP Agreement,
respectively.  This Section 9.3 is made
against the background that the Revenue Sharing Payments due to Cerus under the
Platelet Agreement and the RBC/FFP Agreement are based on Premium, which is
computed in part based on Baxter’s Cost of Goods.  Baxter has informed Cerus that, in computing
Premium, Baxter has used, and intends to use, its standard cost of goods,
calculated consistent with Section 9.2, rather than its actual Cost of
Goods.  The parties hereby ratify such
practice and agree that, subject to Sections 9.3(b), (c) and (d) below, Baxter’s
Cost of Goods, as such term is used in the Platelet Agreement and the RBC/FFP
Agreement shall refer to Baxter’s standard cost of goods.


 


(b)                                 Notwithstanding
the foregoing, for computing Premium on sales of Platelet Systems in calendar
years [ * ] only, the Parties agree that,
promptly following each such calendar year, Baxter will determine the actual
Cost of Goods (without regard to the modification effected by Section 9.3(a))
for such products for such year and prepare a calculation of Premium on that
basis.


 


(i)                                     In
the event that such calculation results in a greater Revenue Sharing Payment to
Cerus for such calendar year than that derived using Baxter’s standard cost of
goods, Baxter will make an additional payment to Cerus in the amount of the
difference between such greater Revenue Sharing Payment amount and the Revenue
Sharing Payment previously paid or payable to Cerus with respect to such
calendar year; provided that such
additional payment shall not exceed [ * ] Dollars ($[ * ]) per Inactivation Package.  Baxter will not be required, however, to make
any payment that would cause Cerus’ Revenue Sharing per Inactivation Package to
be greater than the maximum amount indicated in the last sentence of Section
7.2, as amended, of the Platelet Agreement.


 


(ii)                                  In
the event that such calculation results in a lesser Revenue Sharing Payment to
Cerus for such calendar year than that derived using Baxter’s standard cost of
goods, Cerus will refund to Baxter the difference between the Revenue Sharing
Payment previously paid or payable to Cerus with respect to such calendar year
and such lesser Revenue Sharing Payment amount; provided that such payment shall not exceed [ * ] ($[ * ]) per
Inactivation Package. Notwithstanding the foregoing, Cerus will not be
required, however, to make any payment that would cause Cerus’ Revenue Sharing
per Inactivation Package to be less than the minimum amount indicated in the
last sentence of Section 7.2, as amended, of the Platelet Agreement.


 










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


 


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(c)                                  Also
notwithstanding the foregoing, for computing Premium on sales of Platelet
Systems and Plasma Systems in calendar years subsequent to [ * ].  The following shall apply:


 


(i)                                     With respect to Platelet Sets, the Cost of
Goods will exclude that portion of Overhead per Platelet Set exceeding [ * ]Dollars and [ * ] Cents ($[ * ]) per unit;
provided that the aggregate number of Platelet Sets shipped by Baxter in any
calendar year exceeds [ * ], inclusive of shipments to Cerus and shipments
by Baxter to its customers or other collaborators, such as BioOne. With respect
to Plasma Sets, the Cost of Goods will exclude that portion of Overhead per
Plasma Set exceeding [ * ] Dollars and [ * ] Cents ($[ * ]) per unit; provided that the aggregate number
of Plasma Sets shipped by Baxter in any calendar year exceeds [ * ], inclusive of
shipments to Cerus and shipments by Baxter to its customers or other
collaborators, such as BioOne.


 


(ii)                                  If shipments are for fewer than [ * ] Platelet Sets
in any calendar year, aggregate Overhead applied over all Platelet Sets shipped
in such calendar year, inclusive of all shipments described in clause (i)
above, shall not exceed [ * ] Dollars ($[ * ]). If shipments are for fewer than 40,000
Plasma Sets in any calendar year, aggregate Overhead applied over all Plasma
Sets shipped in such calendar year, inclusive of all shipments described in
clause (i) above, shall not exceed [ * ] Dollars ($[ * ]).


 


(iii)                               As used in this Section 9.3(c) definition: “Overhead”
means total overhead, depreciation and amortization;  “Direct Cost” means the direct cost of labor
and materials computed before Overhead. 
For the purpose of determining Overhead per Platelet Set or Plasma Set
(collectively “Sets”), the parties will project at the commencement of each
calendar year whether the number of such Sets expected to be shipped in such
calendar exceeds [ * ] and will apply clause (a) or (b) above
according to such projection.  If the
parties projected that fewer than [ * ] units would be shipped, a reconciliation will
be made promptly following the end of such calendar year.  If the parties projected that more than [ * ] units would be
shipped, a reconciliation will be made promptly following the end of such
calendar year if fewer units were shipped.


 


(d)                                 For
the purpose of clarity, the Parties preserve the Platelet Agreement provisions
to the effect that, in computing Premium, Baxter is entitled to deduct that
portion of its Cost of Goods that exceeds $[ * ] and Cerus
is entitled to receive that portion of its Cost of Goods that exceeds $[ * ] (as per the definitions of “Additional Cost of Goods,”
“Anticipated Cost of Goods,” and “Premium” in Section 2 of the Platelet
Agreement).


 


(e)                                  For
the purpose of consistency, Baxter confirms that its standard cost of goods
does not and will not include any of the items that were expressly excluded
from “Cost of Goods”, as previously defined, in the Platelet Agreement and the
RBC/FFP Agreement.


 










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


 


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9.4                                 Under License Agreement for Reverted Right
Regions.  Cerus will pay
Baxter a royalty as set forth in the License Agreement with respect to the sale
of Platelet Systems, Plasma Systems and certain related products in the
Reverted Rights Regions.


 


9.5                                 Under BioOne Agreements.  Baxter and Cerus will share
revenues arising from the agreements previously entered into with BioOne
concerning the Platelet System as provided in such agreements.  If Baxter and Cerus enter into similar
agreements with BioOne or other party with respect to the Plasma System, as
contemplated in Section 3.2(c) hereof, (a) any royalties arising from such
agreement will be allocated and paid as follows: [ * ]
percent ([ * ]%) to Cerus and [ * ] percent ([ * ]%) to
Baxter, and (b) any up-front payments, milestone payments and license payments
arising from such agreement will be allocated and paid [ * ]
percent ([ * ]%) to Cerus, except that Baxter
would be entitled to receive from Cerus [ * ]Dollars ($[ * ]) of the [ * ] Dollars
($[ * ]) milestone payment that would be
expected by Cerus from BioOne or another Japan partner on European CE mark
approval.  However, the BioOne milestone
payment to Cerus for CE Mark approval will be reduced by half if CE Mark filing
does not occur within [ * ] months
following December 28, 2004. 
Accordingly, Cerus’ payment to Baxter will be reduced to $[ * ] if the CE Mark filing occurs after such date.  If the definitive agreements with BioOne
concerning the Plasma System terminate prior to CE Mark approval (or upon a
default by BioOne in making its milestone payment referred to above), and such
milestone payment is not replaced with a similar milestone payment to Cerus, in
the amount of at least [ * ] Dollars
($[ * ]), under an agreement with another
Japan partner, Cerus will not be obligated to make the payment to Baxter as
stated above.  If Cerus does not make
such payment, upon reversion of rights to Baxter and Cerus from BioOne, the
rights and obligations of Cerus and Baxter concerning the Plasma System in the
countries of the BioOne Territory will revert to the terms of the RBC/FFP
Agreement.


 


9.6                                 Arising from Third-Party Arrangements.


 


(a)                                  If,
during the period that Baxter retains Commercialization Rights for the Platelet
System in any country, the Parties enter into an arrangement with a third party
for commercialization of the such System in such country, any up-front
payments, milestone payments, license payments and royalties arising from such
agreement relative to the Platelet System will be allocated and paid as
follows:  [ * ] percent
([ * ]%) to Cerus and [ * ] percent ([ * ]%) to
Baxter; and


 


(b)                                 If,
during the period that Baxter retains Commercialization Rights for the Plasma
System in any country, the Parties enter into an arrangement with a third party
for commercialization of the such System in such country, (i) any royalties
arising from such agreement relative to the Plasma System will be allocated and
paid as follows: [ * ] percent ([ * ]%) to Cerus and [ * ] percent ([ * ]%) to Baxter, and (ii) any up-front payments, milestone
payments and license payments arising from such agreement relative to the
Plasma System will be allocated and paid [ * ] percent ([ * ]%) to Cerus.


 










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


 


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For the sake of clarity, if
such an agreement with respect to any country is entered into as to the
Platelet System or Plasma System after termination of Baxter’s Commercialization
Rights for such System in such country, Baxter will not be entitled to the
payments as provided above, but will instead be entitled to receive royalties
arising from such agreement as provided in Article 5 of the License Agreement.


 


9.7                                 Intersol Pooling Sets, Intersol SDP Conversion Kits
and Intersol SDP Collection Kits To Be Sold by Baxter.


 


(a)                                  Baxter
shall continue to make available to customers, at reasonable pricing, Intersol
Pooling Sets, Intersol SDP Conversion Kits and Intersol SDP Collection Kits
(collectively “Intersol Products”).  For
all such products sold by Baxter or Baxter’s affiliates in any country where
Baxter retains Commercialization Rights, Baxter will pay to Cerus [ * ] percent ([ * ]%) of the
Integration Premium.  Such payments shall
be made according to the provisions governing Revenue Sharing Payments under
the Platelet Agreement.


 


(b)                                 For
all Intersol Products sold by Baxter or Baxter’s Affiliates in a country in the
Reverted Rights Region, whether or not for use in connection with the Platelet
System, Baxter shall pay to Cerus:


 


(i)                                     [ * ] on sales of Intersol Products in such country until
receipt of regulatory approval to market the Platelet System in such country;


 


(ii)                                  During
each [ * ] month period following the date
of such regulatory approval in such country, 
(the “Commencement Date”):


 


(A)                              A
royalty of [ * ] percent ([ * ]%) of Net Sales of Intersol Products up to (but not
exceeding) [ * ] of Intersol Products sold in
such country during the [ * ] month
period immediately preceding the Commencement Date (the “Base Volume”); and


 


(B)                                [ * ] percent ([ * ]%) of the
Integration Premium on sales of Intercept Products exceeding the Base
Volume.  In any country where the
Platelet System receives regulatory approval prior to Intersol Product
stand-alone approval, there is [ * ].


 


(c)                                  In
the event that Baxter enters into any new license, supply or other
commercialization arrangement with a third Person relating to use of Intersol
in connection with the Platelet System, Cerus shall be entitled to receive [ * ] percent ([ * ]%) of any
up-front payments, milestone payments, license payments and royalties arising
from such agreement.  It is understood
that any such agreement by Baxter is subject to Cerus’ prior written consent.


 










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


 


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(d)                                 For
all bulk Intersol Solution sold by Baxter or Baxter’s Affiliates for use in any
country where Baxter retains Commercialization Rights, Baxter will pay to Cerus
[ * ] percent ([ * ]%)
of the Bulk Intersol Premium.


 


(e)                                  For
all bulk Intersol Solution sold by Baxter or Baxter’s Affiliates for use in a
Reverted Rights Region, Baxter will pay to Cerus [ * ]
([ * ]%) of the Bulk Intersol Premium.


 


(f)                                    As
used in this Section 9.7, the following terms have the following meanings and,
for the definitions of Intersol Pooling Set, Intersol SDP Conversion Kit,
Intersol SDP Collection Kit, Base Pooling Set, Base Intersol Collection Kit and
Intersol Solution, include all improvements and modifications to current and
future such products developed, produced, marketed or sold by Baxter to
accomplish a similar purpose related to the Platelet System:


 


“Agreement Year” means a
calendar year.


 


“Average Selling Price” shall mean the
gross sales revenue, less product return credits and pricing adjustments,
divided by net units sold.


 


“Base Pooling Set” means Baxter’s
disposable set for pooling of platelets, not containing Intersol Solution.


 


“Base SDP Collection Kit” means
Baxter’s disposable kit for collection of single donor platelets using Baxter’s
technology and platform, not containing Intersol Solution.


 


“Bulk Intersol Premium” means the
difference between Baxter’s Net Sales and Cost of Goods for bulk Intersol
Solution, as such terms are defined in the Platelet Agreement, as amended by
Section 9.3(a) hereof.


 


“Integration
Premium” means the pricing differential between a Base SDP Collection Kit
and an Intersol SDP Collection Kit, and the pricing differential between a Base
Pooling Set and an Intersol Pooling Set, minus Baxter’s Cost of Goods
(as defined in the Platelet Agreement, as amended by Section 9.3(a) hereof) for
the Intersol Solution and integration. 
Such pricing differential should be calculated based on the prior
Agreement Year’s actual Average Selling Price of the Base SDP Collection Kit
and the Intersol SDP Collection Kit.  For
Intersol SDP Conversion Kits, the Integration Premium per kit will be equal to
the prior Agreement Year’s actual Average Selling Price of Intersol SDP
Conversion Kits minus Baxter’s Cost of Goods (as defined in the Platelet
Agreement, as amended by Section 9.3(a) hereof) for the Intersol SDP Conversion
Kit.   In the event that for any
Agreement Year, it is not possible to calculate a meaningful pricing
differential between Base SDP Collection Kits and Intersol SDP Collection Kits,
or between Base Pooling Sets and Intersol Pooling Sets (e.g. because Baxter
includes Intersol in all or substantially all its collection kits and pooling
sets) the parties will use the pricing differential that existed in the most
recent Agreement Year in which there was


 










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


 


21





















 


such a differential.  The Integration Premium will be determined as
soon as reasonably possible for each Agreement Year.


 


“Intersol Net Sales” means the amount invoiced by Baxter and
Baxter Affiliates for Intersol Products, less credits or allowances, if any,
for rejections or returns, customary trade discounts actually given, less
customs and duties paid; less separately invoiced and actually incurred taxes
and other governmental charges that are imposed directly on or measured by the
sale, transfer, transportation, delivery or use of an Intersol Product; and
less freight on shipment from Baxter to end users.


 


“Intersol SDP Collection Kit” means Baxter’s disposable kit
including Intersol Solution for collection of platelets using Baxter’s
technology and platform as modified to be compatible with the Platelet System
such that platelets collected with the Intersol Baxter SDP Kit can be pathogen
inactivated, without any further processing, through the Platelet System.


 


“Intersol
SDP Conversion Kit” means a disposable set having Intersol Solution which
permits the preparation of single donor platelets collected on a non-Baxter
apheresis collection platform to interface with the Platelet System.


 


“Intersol
Pooling Set” means a disposable set for the pooling of platelets including
Intersol Solution, such that platelets pooled can be pathogen inactivated,
without any further processing, through the Platelet System.


 


“Intersol Solution” means a proprietary platelet storage
solution currently sold under the trademark “Intersol”.


 


(g)                                 In
consideration of the payments provided for in Sections 9.7(a) and (b), above,
Cerus waives the right to receive a [ * ] percent ([ * ]%) royalty on such sales (which would otherwise be
required by Section 8.3 of the Platelet Agreement).  In addition to the payments provided for in
Section 9.7(a) and 9.7(b), Baxter shall pay to Cerus [ * ]
percent ([ * ]%) of the amount by which (i) the
sales price to any customer for any Intersol Product in any country exceeds
(ii) the Average Selling Price of such product on the date [ * ]
months prior to receipt of regulatory approval for such product in such country
plus any increase in cost of goods.  Such
payment obligation shall commence to accrue on such date ([ * ]
months prior to regulatory approval). 
Such payment will not be required on sales of Intersol Products on which
Cerus is already receiving [ * ] percent ([ * ]%) of Integration Premium pursuant to [ * ].


 


(h)                                 Baxter shall not be
required to make any payment to Cerus pursuant to this Section 9.7 on the sale
of Intersol Products or bulk Intersol to Cerus pursuant to the Manufacturing
Agreement.


 


(i)                                     The
period of time over which Baxter shall report and make payments pursuant to
this Section 9.7, with respect to each country, is [ * ]
years from the date of first commercial sale of the Intersol Product or bulk
Intersol Solution in the


 










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


 


22





















 


relevant country or until the
date of the last to expire Licensed Patent covering the Intersol Product or
Intersol Solution in the relevant country whichever period is longer (the “Royalty
Period”).  For Intersol Products and bulk
Intersol manufactured by Baxter prior to the expiration of the applicable
Royalty Period and sold by Baxter within [ * ] months
after the expiration of such Royalty Period, Baxter shall pay to Cerus the
applicable royalty amount set forth in Section 9.7.


 


(j)                                     Baxter
shall not cease making Intersol Products available unless Baxter has provided
Cerus with [ * ] months’ prior written notice
of such intention and has provided Cerus with all information and assistance
required pursuant to the License Agreement and Manufacturing Agreement to
enable Cerus to manufacture such products, or have them manufactured by third
parties.


 


9.8                                 Concerning Platform Manufacturer Agreements.  Baxter agrees, for the benefit of
Cerus, to continue to supply Intersol Solution to [ * ],
and otherwise comply with its obligations under (a) the Technology Development
Agreement and Requirements Contract with such company entered into as of [ * ], as amended effective [ * ], (b) the Supply Agreement entered into as of
[ * ], with [ * ], and (c) the Supply Agreement entered into
as of [ * ], with [ * ].


 


9.9                                 Concerning Intersol Solution Validation Activities.           In
the event that Cerus requires that Intersol Solution to be made available in
Intersol Collection Kits, Intersol SDP Conversion Kits or Intersol Pooling Sets
in any country where Baxter has not previously obtained regulatory approval for
such use of Intersol Solution, Baxter, at Cerus’ request and expense, will
expeditiously undertake such activities as necessary or appropriate to obtain
such approval.  Cerus and Baxter will
mutually agree on plans and budgets for such activities, which agreement will
not be unreasonably withheld.


 


9.10                           Concerning Third-Party [ * ].                                In the event that Baxter obtains a [ * ] from [ * ] of [ * ] relating to [ * ] in [ * ] held by [ * ], including [ * ], Cerus shall
pay to Baxter the lesser of (x) [ * ] percent ([ * ]%) of the amount paid by Baxter to [ * ] to obtain [ * ], or (y) $[ * ]; provided that
Cerus shall be obligated to make such payment only if Baxter elects [ * ] for [ * ].


 


10.                                 MUTUAL RELEASES.


 


10.1                           Baxter’s Release.   Upon execution of this Agreement and the
Concurrent Agreements and subject to the complete fulfillment and performance
of all conditions set forth therein, Baxter together with its respective
predecessors, affiliates, assigns, representatives, agents, attorneys,
partners, employees and insurers hereby fully releases, remises, forgives and
discharges (collectively “Releases”) Cerus, together with its respective
predecessors, affiliates, assigns, representatives, agents, attorneys, partners,
employees and insurers from all claims, actions and causes for action (whether
at law, in equity, or otherwise), disputes, demands, counterclaims,
arbitrations, duties, debts, suits, damages, obligations, costs, expenses,
liens, liabilities, accounts, reckonings, rights, rights of action, rights of
indemnity (whether legal or equitable), rights of subrogation,


 










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


 


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rights to contribution,
defenses, setoffs and remedies of any nature whatsoever, (collectively “Claims”)
whether known or unknown, which Baxter has, or ever had, or, may hereafter
have, for, upon, or by reason of any matter, cause, or thing, of any nature
whatsoever, except as set forth in Section 10.3 hereof, occurring at any time
or times up to the date of this Agreement (but not including obligations under
this Agreement or the Concurrent Agreements); in
each case solely to the extent arising out of any failures of Cerus
to have performed any of its obligations under the Platelet Agreement or the
RBC/FFP Agreement.  Baxter acknowledges
and affirms that it is not relying on, and has not relied on, any
representation or statement made by Cerus with respect to the facts involved in
this release or with regard to the rights or asserted rights of Baxter.  Baxter hereby assumes all risk with respect
to any mistakes of fact with regard to this release and with regard to all
facts which are now unknown to Baxter relating thereto.


 


10.2                           Cerus’ Release. 
Upon execution of this Agreement and the Concurrent
Agreements and subject to the complete fulfillment and performance of all
conditions set forth therein, Cerus, together with its respective predecessors,
affiliates, assigns, representatives, agents, attorneys, partners, employees,
and insurers hereby fully releases, remises, forgives and discharges
(collectively “Releases”) Baxter, together with its respective predecessors,
affiliates, assigns, representatives, agents, attorneys, partners, employees
and insurers from all claims, actions and causes for action (whether at law, in
equity, or otherwise), disputes, demands, counterclaims, arbitrations, duties,
debts, suits, damages, obligations, costs, expenses, liens, liabilities,
accounts, reckonings, rights, rights of action, rights of indemnity (whether
legal or equitable), rights of subrogation, rights to contribution, defenses,
setoffs and remedies of any nature whatsoever (collectively “Claims”) , whether
known or unknown, which Cerus has, or ever had, or, may hereafter have, for,
upon, or by reason of any matter, cause, or thing, of any nature whatsoever,
except as set forth in Section 10.3 hereof, occurring at any time or times up
to the date of this Agreement (but not including obligations under this
Agreement or the Concurrent Agreements); in
each case solely to the extent arising out of any failures of Baxter
to have performed any of its obligations under the Platelet Agreement or the
RBC/FFP Agreement.  Cerus acknowledges
and affirms that it is not relying on, and has not relied on, any
representation or statement made by Baxter with respect to the facts involved
in this release or with regard to the rights or asserted rights of Cerus.  Cerus hereby assumes all risk with respect to
any mistakes of fact with regard to this release and with regard to all facts
which are now unknown to Cerus relating thereto.


 


10.3                           Survival of other Agreements and Claims.  It is understood and agreed that
the Platelet Agreement and the RBC/FFP Agreement survive this Agreement and
remain in effect, as amended by this Restructuring Agreement.  Nothing in this Agreement is intended to
alter the rights and obligations of the Parties that have accrued to the
Parties under the Platelet Agreement or the RBC/FPP Agreement to the date
hereof, except solely to release Claims for any failures to perform, as
expressly stated in Sections 10.1 and 10.2 of this Agreement.  It is further understood and agreed that,
notwithstanding Sections 10.1 and 10.2, neither Party Releases the other Party
from any Claims (a) specifically for amounts that have accrued, but are unpaid,
as of the date hereof (i) for Revenue Sharing Payments (as defined in the
Platelet Agreement and RBC/FFP Agreement), or (ii) for Cooperative Development
Work (as defined in the


 










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


 


24





















 


Platelet Agreement and RBC/FFP Agreement); or (b)
arising from inaccuracies that may be discovered in any payments that have
previously been made or credits given, or the accounting or reporting thereof,
in respect of Revenue Sharing Payments or for Cooperative Development Work,
including without limitation any of the same discovered through audit.  However, Claims against Baxter for having
previously remitted Revenue Sharing Payments to Baxter Capital Corporation are
released pursuant to Section 10.2 of this Agreement.


 


10.4                           Representation and Warranty.  Baxter and Cerus each represents
and warrants on its own behalf that it has not sold, assigned, transferred, conveyed
or otherwise disposed of to any third party, by operation of law or otherwise,
any action, cause of action, suit, debt, obligation, account, contract,
agreement, covenant, guarantee, judgment, controversy, damage claim,
counterclaim, liability or demand of any nature whatsoever against the other.


 


11.                                 EFFECT ON PLATELET AGREEMENT AND RBC/FFP AGREEMENT.


 


11.1                           Incorporation By Reference.  Any provision of this Agreement modifying the
obligations of the Parties under the Platelet Agreement or the RBC/FFP
Agreement shall be considered to be incorporated in each such agreement,
respectively.  The Parties may elect to
restate those agreements to reflect such modifications, but the effectiveness
of such modifications is immediate, and not contingent on restating those
agreements. Except as modified by this Agreement or the Concurrent Agreements
and the Escrow Agreement, the Platelet Agreement and RBC/FFP Agreement shall
remain in full force and effect.


 


11.2                           Other Changes.


 


(a)                                  The
term “Management Board” as used in the Platelet Agreement and the RBC/FFP
Agreement is replaced by the term “Governance Committee.”


 


(b)                                 Sections
5.1 and 5.2 of the RBC/FFP Agreement are amended to provide that Baxter, rather
than Cerus, will have the responsibility for production of the compound
removal/adsorption device(s) for removing residual compounds and by-products
following the pathogen inactivation process in the Plasma System (referred to
in such agreement as “S59 removal devices” and also commonly referred to by the
Parties as the “CADs” for the Plasma System). 
It is understood that Baxter presently has production capacity for
approximately [ * ] of such units per year ([ * ]).  If Cerus requires additional production,
Cerus will be responsible for the purchase of an additional tool or tools.


 


(c)                                  This
Agreement supersedes any provisions of the Platelet Agreement or the RBC/FFP
Agreement permitting Cerus to terminate Baxter’s Commercialization Rights, or
the exclusivity of Baxter’s marketing rights, as a consequence of a failure by
Baxter, during 2005, 2006 or any Extension Period, if applicable, to meet
market share objectives set forth in such agreements.  Cerus, however, retains its rights to effect
a termination of Commercialization Rights under


 










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


 


25





















 


either
such agreement, as a whole or as to individual countries, in the case of breach
by Baxter of the respective agreement, or pursuant to Section 12.1 of this
Agreement (without limiting other rights or remedies).  In such event, without limiting any other
rights and remedies of Cerus, all countries affected by such termination shall
automatically be included in the Reverted Rights Region, and (a) Cerus shall,
as to the affected countries, be entitled to the rights provided under this
Agreement and the Concurrent Agreements, subject to its obligations thereunder,
and (b) the provisions of the Platelet Agreement and RBC/FFP Agreement for
sharing of revenues upon sales by Cerus, or sublicensing by Cerus, are deemed
to be superseded (in the countries so affected) by the provisions of this
Agreement and the Concurrent Agreements.


 


12.                                 TERMINATION.


 


12.1                           Termination Events.  In addition to the provisions in the Platelet
Agreement and the RBC/FFP Agreement permitting termination thereof, in the
event Baxter fails to perform any of its obligations under this Agreement, and
such failure is not cured within [ * ] days after written notice from Cerus to BHC, Cerus may
terminate the Platelet Agreement and/or the RBC/FFP Agreement, without terminating
any other rights or remedies.


 


12.2                           Extension of Platelet Agreement.  The term of the Platelet
Agreement, as stated in Section 15 of the Platelet Agreement, is extended until
the date on which all Commercialization Rights of Baxter as to the Platelet System
are terminated in all countries.


 


12.3                           Surviving Agreements; Provisions.


 


(a)                                  Upon
termination of the Platelet Agreement or the RBC/FFP Agreement, the following
shall remain in effect:


 


(i)                                     This
Agreement, the Concurrent Agreements and the Escrow Agreement, except to the
extent any of such agreements have expired by their terms, or been earlier
terminated;


 


(ii)                                  Any
provisions of the Platelet Agreement or the RBC/FFP Agreement, which pursuant
to the express terms of such agreement, survive its termination.


 


(b)                                 Upon
termination of this Agreement, the following shall remain in effect:  Sections 2.9, 2.11, 2.12, 2.13(d) through
(g), 3.1(b), 3.2(a), 3.2(c), 3.2(d), 3.3, 4, 9.5, 10, 11, 12, 13, 14 and 15.


 


12.4                           Baxter Termination Right.    In
the event that Cerus fails to comply with its obligations under Section 3.2(b)
hereof concerning funding of activities in 2005 directed toward application for
CE Mark, and such failure is not cured within [ * ]
days after written notice from BHC to Cerus, Baxter may terminate its
obligations pursuant to


 










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


 


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Section 3.2(b) hereof relating
to CE Mark activities and shall be entitled to receive payment for any such
activities completed by Baxter up to the date of termination.  In addition, upon such event, Baxter may
require Cerus to reimburse Baxter the amount of Baxter’s then depreciated cost
of certain equipment that has been acquired by Baxter for the dedicated purpose
of producing Plasma Sets and that is not useable by Baxter for other
purposes.  Baxter represents that the
depreciated cost of such equipment as of the date of this Agreement is [ * ]
Dollars ($[ * ]). 
Unless Cerus notifies Baxter that Cerus wishes to acquire any such
equipment, Baxter will make reasonable efforts to dispose of the equipment and
Cerus’ payment obligation will be reduced by the proceeds of disposition.  If Cerus elects to purchase the equipment,
title will pass to Cerus upon payment by Cerus to Baxter of such full
depreciated cost.


 


13.                                 REPORTS AND PAYMENTS.


 


13.1                           Reports. 
Within [ * ] days after the end of each
calendar quarter, Baxter agrees to make written reports to Cerus identifying
Baxter’s actual Intersol Product and Bulk Intersol sales and Integration
Premium, royalties and other payments from sales of Intersol Products and Bulk
Intersol Premium during such month and the amount of payments (“Intersol
Sharing”) due to Cerus.


 


13.2                           Payment of Royalties.  Within [ * ] days after calendar quarter end, Baxter shall pay to
Cerus the Intersol Sharing due for the Intersol in U.S. dollars.


 


13.3                           Currency.   All payments due
hereunder shall be made in U.S. Dollars. 
Pricing for the Intersol Products will be presented in local currency
and converted into U.S. dollars during the Intersol sharing period being
reported subject to Section 9.7 hereof. 
The conversion rate to U.S. dollars for Intersol Sharing Payments shall
be the average conversion rate over all days of the Intersol Sharing period
reported, as quoted in the Wall Street Journal. 
The conversion rate to U.S. dollars applicable to expenditures as to the
European Territory pursuant to Sections 2.1 through 2.9 shall be made at Baxter’s
internal rate used by Baxter generally for international currency exchange
accounting.


 


13.4                           Late Payment.  Failure by Baxter, Baxter’s Affiliates or
sublicensees to pay any undisputed amounts when due shall result in the accrual
of interest on the remaining unpaid balance at a rate equal to the lesser of [ * ] percent ([ * ]%) per
month or the maximum rate allowed by law.


 


13.5                           Withholding Taxes.    Where
required to do so by applicable law, Baxter shall withhold taxes required to be
paid to a taxing authority on account of any Intersol Sharing payments to Cerus
hereunder, and Baxter shall furnish Cerus with satisfactory evidence of such
withholding and payment in order to permit Cerus to obtain a tax credit or
other relief as may be available under the applicable law.  Baxter shall be responsible for penalties and
interest accessed for late payment or failure to withhold.


 


13.6                           Audit. 
For a period of [ * ] years (the “Audit Period”) after sales of any Intersol
Products by Baxter in the Territory, Baxter will keep records of all such sales
and


 










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


 


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Integration Premium of Intersol
Product in sufficient detail to enable the Intersol Sharing payable hereunder
to be determined.  For a period of [ * ] years after any activities pursuant to Section 2
hereof, Baxter will keep records of its expenditures that are charged against
the Escrow Account or against Baxter’s funding commitments pursuant to Sections
2.1 through 2.13, and of its FTEs (including dedicated and allocated FTEs)
committed to such activities for the Platelet System and the Plasma System,
respectively.  For a period of [ * ] years after any determination of Adjusted Gross Margin
pursuant to Section 8.3, Baxter will keep records in sufficient detail to
enable such amount to be determined. 
Notice by Cerus, pursuant to Section 8.3, accepting Baxter’s
determination of Adjusted Gross Margin does not preclude Cerus from later
obtaining an adjustment of the European Buy-Out Price or ROW Country Buy-Out
Price, if the Baxter’s determination of Adjusted Gross Margin subsequently
proves to have been inaccurate.  From
time to time during such Audit Period, Cerus may at its own expense cause an
independent third party auditor reasonably acceptable to Baxter to audit Baxter’s
relevant books and records for the purpose of determining compliance with this
Agreement.


 


In the event that an audit is proposed with
respect to Baxter’s proprietary information (“Restricted Information”), then on
the written demand of Baxter the individuals conducting the audit with respect
to the Restricted Information will be limited to Cerus’ independent auditors.  Such independent auditors shall enter into an
agreement with Baxter, under which such independent auditors shall agree to
maintain the confidentiality of the information obtained during the course of
such audit and establishing what information such auditors will be permitted to
disclose in reporting the results of any audit of Restricted Information.


 


Any such audit shall be conducted during
regular business hours in a manner that does not interfere unreasonably with
the operations of Baxter.  The aggregate
number of audits of Baxter’s books and records conducted under this Section
13.6 shall not exceed, in any [ * ] month
period, one (1) financial audit, relating to sales of Intersol Products, one
(1) financial audit relating to activities pursuant to Section 2, in addition
to audit of any determination of Adjusted Gross Margin pursuant to Section
8.3.  Subject to the foregoing
limitations, any such audit shall be conducted when requested by notice given
not less than [ * ] days prior to the commencement of the audit.


 


Any overpayment or underpayment determined by
this Section 13.6 shall be due and payable to the other party by the party
owing such amount within [ * ] days after notice of such audit finding. In the event
that any audit performed hereunder results in an increase of [ * ] percent ([ * ]%) or more in any payment due Cerus hereunder, Baxter
shall be obligated to pay any reasonable expenses incurred by Cerus with
respect to such audit.


 


14.                                 INDEMNIFICATION. Section 17.7 of the RBC/FFP Agreement “Baxter
Indemnification — Products” shall be considered to be incorporated by reference
in the Platelet Agreement.


 










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


 


28





















 


15.                                 MISCELLANEOUS.


 


15.1                           Governing Law.  This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Illinois.


 


15.2                           Assignment and Delegation.


 


(a)                                  No Assignments Except as Permitted.
No Party may assign any of its rights under this Agreement other than
assignments to a Permitted Assignee, except with the prior written consent of
the other Party. That Party shall not unreasonably withhold its consent. “Permitted
Assignees” include an Affiliate of the assigning Party and a third party to
whom the assigning Party transfers substantially all of the products, business
and services to which this Agreement relates and who assumes all obligations of
the assigning party under this Agreement and has the capability to perform such
obligations. All other assignments of rights are prohibited under this
subsection, whether they are voluntary or involuntary, by merger,
consolidation, dissolution, operation of law, or any other manner. For purposes
of this Section, (i) a “change of control” is deemed an assignment of rights;
and (ii) “merger” refers to any merger in which a Party participates,
regardless of whether it is the surviving or disappearing corporation.


 


(b)                                 No Delegations. No Party may delegate any performance under
this Agreement.


 


(c)                                  Ramifications of Purported Assignment or Delegation. Any
purported assignment of rights or delegation of performance in violation of
this Section is void.


 


15.3                           Successors and Assigns. 
This Agreement inures to the benefit of, and is binding upon, the
successors and assigns of the Parties hereto.


 


15.4                           Entire Agreement; Amendments.  This Agreement and the Concurrent Agreements
contain the entire understanding of the Parties with regard to the subject
matter contained herein and thereon, and supersede all prior agreements or
understandings between Cerus and Baxter with respect to the subject matter of
this Agreement, the Restructuring Agreement and the Concurrent Agreements.  This Agreement will not be amended, modified
or supplemented except by a written instrument signed by an authorized representative
of each of the Parties.


 


15.5                           Force Majeure. 
Neither Party will be deemed in default if delayed or prevented from
performing its obligations under this Agreement, in whole or in part, due to an
act of God, fire, flood, explosion, civil disorder, strike, lockout or other
labor trouble, material shortages of utilities, equipment, materials or
facilities, delay in transportation, breakdown or accident, riot, war,
terrorist attack or other cause beyond its control (a “Force Majeure Event”);
provided that it shall resume full performance of this Agreement as soon as
practicable following the conclusion of the Force Majeure Event.


 


15.6                           Interpretation; No Strict Construction.  Article titles and headings to Sections
herein are inserted for convenience of reference only and are not intended to
be


 










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


 


29





















 


a
part of or to affect the meaning or interpretation of this Agreement.  The language used in this Agreement shall be
deemed to be the language chosen by the Parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any Party
hereto.


 


15.7                           Partial Invalidity. If any provision of this Agreement, or
the application thereof, is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions of this
Agreement will in no way be effected, impaired or invalidated, and to the
extent permitted by applicable law, any such provision will be restricted in
applicability or reformed to the minimum extent required for such provision to
be enforceable.


 


15.8                           No Third Party Beneficiary. 
This Agreement will not confer any rights or remedies on any person
other than the Parties hereto and their respective successors and permitted
assigns.


 


15.9                           Counterparts.  This
Agreement may be executed in one or more counterparts (and by facsimile), all
of which shall be considered one and the same agreement, and shall become
effective when one or more coun­ter­parts have been signed by each of the
Parties and delivered to the other parties.


 


15.10                     Notices.  Wherever
under this Agreement one Party is required or permitted to give written notice
to the other, such notice will be deemed given if made in accordance with the
terms of the License Agreement.


 


15.11                     Nonwaiver.  No alleged
waiver, modification or amendment to this Agreement shall be effective against
either Party hereto, unless in writing, signed by the Party against which such
waiver, modification or amendment is asserted, and referring specifically to
the provision hereof alleged to be waived, modified or amended.  The failure or delay of either Party to
insist upon the other Party’s strict performance of the provisions in this
Agreement or to exercise in any respect any right, power, privilege, or remedy
provided for under this Agreement shall not operate as a waiver or
relinquishment thereof, nor shall any single or partial exercise of any right,
power, privilege or remedy preclude other or further exercise thereof, or the
exercise of any other right, power, privilege, or remedy; provided, however,
that the obligations and duties of either Party with respect to the performance
of any term or condition in this Agreement shall continue in full force and
effect.


 


15.12                     Alternative Dispute Resolution.  Any disputes arising under this Agreement
shall be resolved as follows:


 


(a)                                  Any
dispute relating to the provisions of this Agreement that concern solely the
Loan Agreement will be resolved in accordance with the terms of the Loan
Agreement and otherwise in accordance with legal process.


 


(b)                                 Any
dispute relating to the rights and obligations of Cerus and Baxter concerning,
or arising out of, Baxter’s Commercialization Rights or other


 










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


 


30





















 


continuing rights and
obligations under the Platelet Agreement or the Plasma Agreement (except
disputes of the nature described in Section 15.12(c) below) will be resolved in
accordance with the terms of the Plasma Agreement, including Governance
Committee processes and other processes for dispute resolution (whether the dispute
relates to the Platelet System or the Plasma System).  For the sake of consistency, any disputes
arising under the Platelet Agreement will also henceforth be resolved by the
processes for dispute resolution set forth in the Plasma Agreement, including
Governance Committee and other processes.


 


(c)                                  Any
disputes (i) as to whether Baxter retains Commercialization Rights or (ii)
relating to the rights and obligations of Cerus and Baxter concerning, or
arising out of Cerus’ Commercialization Rights, after Cerus gains such rights,
or (iii) relating to the European Territory Buy-Out Rights or the ROW Country
Buy-Out Rights; shall be resolved in accordance with this Subsection (c).  Cerus and Baxter will attempt to settle any
claim or controversy through good faith negotiations and in the spirit of
mutual cooperation.  Any issues that cannot be resolved
will be referred to a senior management representative from each of the Parties
who has the authority to resolve the dispute.  In the event such senior management
representatives cannot resolve the dispute, the dispute shall be submitted to
binding arbitration for resolution.  Any
such proceedings shall be conducted at the place of the principal office of the
respondent in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (“AAA”).  Any
such dispute or controversy shall be arbitrated before a single arbitrator
selected in accordance with the rules of the AAA.  The arbitrator’s decision shall be final and
binding upon the parties.  The parties
shall be entitled to full discovery in any such arbitration.  Each party shall bear one half of the cost of
such arbitration, unless the arbitrator otherwise allocates such costs.  Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.


 


(d)                                 Notwithstanding
the foregoing, any disputes arising under any Concurrent Agreement containing
an explicit dispute resolution process will be resolved in accordance with that
process.


 


(e)                                  Nothing
in this Section will prevent either Party from resorting to judicial process if
injunctive relief from a court is necessary to prevent serious and irreparable
injury to one Party or to others.


 


15.13                     Joint and Several Liability.  BHSA and BHC’s obligations and liability
under this Agreement shall be joint and several, including without limitation,
with respect to each such party’s indemnification obligations under Section 14.


 


15.14                     Availability of Injunction.  Baxter and Cerus agree that any
breach, or threatened breach, of this Agreement by one Party could cause
irreparable damage to the other Party. 
The Parties agree that, in the event of such breach, or threatened
breach, the Parties shall have, in addition to any and all remedies of law, the
right to an injunction, specific performance as well as all other equitable
relief to prevent the violation of any obligations hereunder without the
necessity of any proof of actual damages or the posting of a bond or other
security.  The Parties further agree that
any action pursuant to this


 










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


 


31





















 


Section can and shall be
brought in the state or federal courts located in Chicago, Illinois or San
Francisco, California.  The Parties
hereby consent to the jurisdiction of such state or federal courts over such
disputes and hereby waive and agree not to raise any and all defenses to the
exercise of jurisdiction by such state or federal courts, including without
limitation, personal jurisdiction, improper venue and forum non conveniens.


 


{Signature Page to Follow}


 


 










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


 


32





















 


IN WITNESS WHEREOF, the Parties have duly
executed this Agreement as of the date first set forth above.


 


 


	
  BAXTER
  HEALTHCARE S. A.

  	
   

  	
  CERUS
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ U.
  Eisenring

  	
   

  	
   

  	
  By:

  	
  /s/ Claes
  Glassell

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  U. Eisenring

  	
   

  	
   

  	
  Name:

  	
  Claes
  Glassell

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Corporate Counsel, Baxter
  Healthcare SA

  	
   

  	
   

  	
  Title:

  	
  President and CEO

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ B.
  Lenzlinger

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  B.
  Lenzlinger

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Finance
  Director

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BAXTER
  HEALTHCARE CORPORATION

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John
  Greisch

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  John Greisch

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Corporate
  Vice President and CFO

  	
   

  	
   

  	
   

  	
   

  
														



 


 










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


 


S-1





















 


EXHIBIT A


 


EUROPEAN TERRITORY


 


AUSTRIA


BELGIUM &  LUXEMBUOURG


BOSNIA-HERCEGOVINA,

CROATIA, KOSOVO, MACEDONIA, ROMANIA, SLOVENIA, SERBIA & MONTENEGRO


BULGARIA


CZECH
REPUBLIC


DENMARK


ESTONIA


FINLAND


FRANCE


GERMANY


GREECE


HUNGARY


ICELAND


IRELAND


ITALY


LATVIA


LITHUANIA


NORWAY


POLAND


PORTUGAL


SLOVAK REPUBLIC


SPAIN


SWEDEN


SWITZERLAND


THE
NETHERLANDS


TURKEY


UK


 










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


 





















 


EXHIBIT B


 


ESCROW AGREEMENT


 


ESCROW AGREEMENT


 


THIS ESCROW AGREEMENT (this “Agreement”)
is made and entered into as of February 2, 2005 by and among Baxter Healthcare
Corporation, a company organized under the laws of Delaware (“BHC”), Cerus Corporation, a company
organized under the laws of Delaware (“Cerus”),
and Union Bank of California, N.A.,
as Escrow Agent, with its office at 475 Sansome Street, 12th Floor,
San Francisco, California (the “Escrow Agent”).


 


BACKGROUND


 


A.                                   BHC and
Cerus have entered into a Restructuring and Settlement Agreement dated as of
February 2, 2005 (the “Restructuring Agreement”).


 


B.                                     Section
2.6 of the Restructuring Agreement provides that BHC shall deposit [ * ] payments, of $[ * ], $[ * ] and $[ * ], on or
before the [ * ] day
following the [ * ], [ * ] and [ * ],
respectively, into a joint BHC/Cerus escrow account.


 


C.                                     The
parties hereto desire to appoint Escrow Agent to receive such Escrow Amounts
(the “Escrow Fund”); to hold and invest said Escrow Fund, together with any
interest or other income earned thereon; and to disburse said Escrow Fund,
together with any interest or other income earned thereon, in accordance with
the terms set forth herein.  Escrow Agent
has agreed to act as such upon the terms, covenants and conditions hereinafter
set forth.


 


AGREEMENT


 


In
consideration of the mutual representations, warranties and covenants contained
herein, and upon and subject to the terms and the conditions hereinafter set
forth, the parties do hereby agree as follows:


 


1.  Defined Terms.  Capitalized terms used in this Agreement
shall have the meanings ascribed to them herein.


 


2.  Deposit of Escrow Amounts.  BHC will deliver to the Escrow Agent, in
accordance with Section 2.6 of the Restructuring Agreement, the following
amounts (the “Escrow Amounts”):


 


(a)                                  [ * ] Dollars
($[ * ]) on or before the [ * ] day following the [ * ]; and


 


(b)                                 [ * ] Dollars
($[ * ]) on or before [ * ]; and


 


(c)                                  [ * ] Dollars
($[ * ]) on or before [ * ].


 










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


 





















 


3.  Escrow Fund.  Upon receipt of the Escrow Amounts, the
Escrow Agent shall send a notice to BHC and Cerus acknowledging receipt of such
amounts and shall hold, administer and dispose of the Escrow Fund pursuant to
the terms of this Agreement (the “Escrow”). 
All rights associated with the Escrow Fund, including any interest or
other income attributable thereto, shall be exercised by the Escrow Agent, and
shall in no event be exercisable by or rest with BHC unless otherwise provided
for herein.  Until such time as the
Escrow Fund shall be distributed by the Escrow Agent as provided herein, the
Escrow Fund and all interest shall be, net of expenses of the Escrow Agent as
provided in Section 7, invested and reinvested by the Escrow Agent at the
written direction of BHC and Cerus, in the name of the Escrow Agent or its
nominee, in readily marketable direct obligations of the Government of the
United States or any agency or instrumentality thereof or readily marketable
obligations unconditionally guaranteed by the full faith and credit of the
Government of the United States.  In the absence of written instructions
otherwise, the Escrow Fund shall be invested in the Blackrock Provident T-Fund.


 


The
Escrow Agent shall be entitled to sell or redeem any such investment as
necessary to make any distributions required under this Agreement and shall not
be liable or responsible for any loss resulting from any such sale or
redemption.


 


The
parties acknowledge that the Escrow Agent may render administrative services
and receive additional fees from the administrator or distributor of said Fund.


 


Any
interest or other income earned by the Escrow Fund (“Interest”) shall be
distributed in accordance with Section 4(f) below.


 


4.  Distributions of the Escrow Fund;
Termination of the Escrow. 
The Escrow Fund shall be distributed by the Escrow Agent in accordance
with the following and with respect to subsections (a) –(e)
below, after receipt of a signed certificate in the format provided for in
Schedule I of this Agreement:


 


(a)                                  Upon the
receipt by the Escrow Agent of a certificate signed by both BHC and Cerus
stating that BHC or Cerus is entitled to be reimbursed a specified dollar
amount for marketing/promotional activities, and instructing the Escrow Agent
to distribute such amount to the party (BHC or Cerus) that incurred the
expenditure, the Escrow Agent shall distribute to such party the amount so
specified.


 


(b)                                 Upon the
receipt by the Escrow Agent of a certificate signed by Cerus, stating that BHC
is entitled to be reimbursed a specified dollar amount for R&D activities
undertaken by BHC at Cerus’ request directed toward CE Mark approval of the
INTERCEPT Blood System for Plasma (such certificate to designate whether such
activities took place in 2005 or 2006), and instructing the Escrow Agent to
distribute such amount to BHC, the Escrow Agent shall distribute to BHC the
amount so specified.  The total amount to
be distributed under this Section 4(b) shall not exceed Two Million Two Hundred
Thousand Dollars ($2,200,000), of which not more than [ * ] Dollars
($[ * ]) will be distributed pursuant to
certificates designating payment for 2005 activities, and not more than [ * ] ($[ * ]) will be
distributed pursuant to certificates designating payment for 2006 activities.


 










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


 





















 


(c)                                  Upon the
receipt by the Escrow Agent of a certificate signed by both BHC and Cerus,
dated after [ * ],
designating a dollar amount to be distributed to BHC and Cerus in respect of
amounts remaining unexpended with respect to [ * ], the
Escrow Agent will distribute such designated amount in equal distribution to
BHC and Cerus representing a year-end disbursement.


 


(d)                                 Upon the
receipt by the Escrow Agent of a certificate signed by both BHC and Cerus,
dated after [ * ],
designating a dollar amount to be distributed to BHC and Cerus in respect of
amounts remaining unexpended with respect to [ * ], the
Escrow Agent will distribute such designated amount in equal distribution to
BHC and Cerus representing a year-end disbursement.


 


(e)                                  Upon the
initial deposit of amounts into the Escrow Fund, and on the first anniversary
date of the date of this Agreement, the Escrow Agent may distribute to itself
the Annual Escrow Administration Fee in the amount set forth on Schedule II
hereto.  Upon incurring of transactional
charges or out-of-pocket expenses for which the Escrow Agent is entitled to
payment pursuant to Schedule II, the Escrow Agent may distribute to itself the
amount of such charges or expenses.


 


(f)                                    The
Escrow Agent shall pay to [ * ] all Interest earned in the Escrow Fund.  Escrow Agent shall pay [ * ]
quarterly and no later than fifteen (15) calendar days following the end of the
quarter such Interest is accrued.


 


(g)                                 In the
event that the Escrow Fund has not been fully distributed in accordance with
Section 4(a)-(e) by [ * ], either BHC or Cerus shall have the right to terminate this
Agreement upon written notice to the other parties.  Upon any such termination of this Agreement,
the full amount of the Escrow Fund, including any accrued Interest, shall be
distributed in equal distribution to BHC and Cerus.


 


(h)                                 The
Escrow Agent shall effect any distributions to BHC and Cerus via wire transfer
of immediately available funds to the account of BHC and Cerus, respectively,
set forth in Schedule III or otherwise designated in writing by BHC and Cerus.


 


5.  Duties of the Escrow Agent.  The Escrow Agent shall have no duties or
responsibilities other than those expressly set forth in this Agreement, and no
implied duties or obligations shall be read into this Agreement against the Escrow
Agent.  The Escrow Agent shall have no
duty to enforce any obligation of any person, other than as provided
herein.  The Escrow Agent shall be under
no liability to anyone by reason of any failure on the part of any party hereto
or any maker, endorser or other signatory of any document or any other person
to perform such person’s obligations under any such document.  Except as set forth in this Agreement, the
Escrow Agent shall not have any duties or responsibilities under any provision
of any other agreement, including without limitation, the Commercialization
Agreement.


 


6.  Liability of the Escrow Agent; Withdrawal.  The Escrow Agent shall not be liable for any
action taken or omitted by it, or any action suffered by it to be taken or
omitted, in good faith, and in the exercise of its reasonable judgment, and may
rely conclusively and shall be


 










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


 





















 


protected in acting upon any court order, reasonable advice of counsel
chosen by the Escrow Agent, or document executed by BHC and/or Cerus
authorizing action (or inaction) in accordance with these instructions by the
Escrow Agent (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained) which is reasonably believed by the Escrow
Agent to be genuine and to be signed or presented by the proper person(s).  The Escrow Agent shall not be held liable for
any error in judgment made in good faith by an officer of the Escrow Agent
unless it shall be proved that the Escrow Agent was negligent in ascertaining
the pertinent facts or acted intentionally in bad faith.  The Escrow Agent shall not be bound by any
notice of demand, or any waiver, modification, termination or rescission of
this Agreement or any of the terms hereof, unless evidenced by a writing
delivered to the Escrow Agent signed by the proper party or parties and, if the
duties or rights of the Escrow Agent are affected, unless it shall give its
prior written consent thereto.  The
Escrow Agent may execute ministerial and record keeping responsibilities
hereunder through its authorized agents.


 


BHC
and Cerus agree to indemnify the Escrow Agent for, and to hold it harmless from
and against, any loss, liability, claims, actions, damages or expenses
(including reasonable expenses and disbursements of its counsel) incurred
without gross negligence, bad faith or intentional misconduct on the part of
the Escrow Agent arising out of or in connection with its entering into this
Agreement and carrying out its duties hereunder, including the reasonable costs
and expenses of defending itself against any such claim or liability.


 


In
the event that the Escrow Agent shall become involved in any arbitration or
litigation relating to the Escrow Fund, the Escrow Agent is authorized to
comply with any decision reached through such arbitration or litigation.


 


Escrow
Agent (and any successor Escrow Agent) may at any time resign as such by giving
30 days’ prior written notice to BHC and Cerus and delivering the Escrow Fund
to any successor Escrow Agent designated by BHC and Cerus in writing, or by any
court of competent jurisdiction, whereupon Escrow Agent shall be discharged of
and from any and all further obligations arising in connection with this
Agreement.  Prior to the effectiveness of
such resignation, BHC and Cerus shall
appoint a new Escrow Agent, which shall be a bank or national banking
association.  The resignation of Escrow
Agent will take effect on the earlier of (a) the appointment of a successor
(including a court of competent jurisdiction) and (b) the day, which is 30 days
after the date of delivery of its written notice of resignation to the other
parties hereto.  If at that time Escrow
Agent has not received a designation of a successor Escrow Agent, Escrow Agent’s
sole responsibility after that time shall be to retain and safeguard the Escrow
Fund until receipt of a designation of successor Escrow Agent or a joint
written disposition instruction by the other parties hereto or a final
non-appealable order of a court of competent jurisdiction.


 


7.  The Escrow Agent’s Fee.  The Escrow Agent’s fees shall be as set forth
on Schedule II hereto.  The Escrow Agent
shall be entitled to reimbursement for any reasonable expenses or disbursements
incurred in connection with the performance of the Escrow Agent’s obligations
hereunder.  To the extent not paid
pursuant to Section 4(e) hereof, BHC and Cerus shall equally bear the Escrow
Agent’s fees and reasonable expenses. 
The Escrow Agent shall be under no obligation to institute or defend any
action, suit, or legal proceeding in connection herewith,


 










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


 





















 


unless first indemnified and held
harmless to its satisfaction, except that the Escrow Agent shall not be
indemnified against any loss, liability or expense arising out of its
negligence or willful misconduct.  Such
indemnity shall survive the termination or discharge of this Agreement or
resignation of the Escrow Agent.  In the
event that any fees remain unpaid after 30 days after written notice of such
fees to each of BHC and Cerus, Escrow Agent may withhold the amount of such
unpaid fees from any income distributable to BHC or Cerus.


 


8.                                       Inspection. 
All funds or other property held as part of the Escrow shall at all
times be clearly identified as being held by the Escrow Agent hereunder.  Any party hereto may at any time during the
Escrow Agent’s business hours (with reasonable notice) inspect any records or
reports relating to the Escrow Fund.


 


9.                                       Accounting by Escrow Agent.  Escrow Agent shall keep accurate and detailed
records of all investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be agreed upon in
writing between BHC, Cerus and Escrow Agent. 
Within 15 days following the close of each month and within 5 days after
the removal or resignation of Escrow Agent, Escrow Agent shall deliver to BHC
and Cerus a written account of its administration of the Escrow during such
month or during the period from the close of the last preceding month to the
date of such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Escrow at the end of such month or as of the date of such removal or
resignation, as the case may be.


 


10.                                 Tax Reporting of Interest or Other Income Accrued with
respect to the Escrow Fund. 
Escrow Agent shall, for each calendar year (or portion thereof) that the
Escrow is in existence, report the interest income or other income of the
Escrow on IRS Forms 1099.  Pursuant to
Proposed Treasury Regulations 1.468B-8, the Forms 1099 shall show as payor the
Escrow Agent and as payee [ * ].  Further, each of BHC and
Cerus shall not take any position in connection with the preparation, filing or
audit of any Tax Return that is in any way inconsistent with the foregoing
determination or the Forms 1099 provided by Escrow Agent.


 


11.                                 Notices. 
All notices, requests, consents and other communications required or
permitted hereunder will be in writing and will be deemed given: (a) when
delivered if delivered personally (including by courier); (b) on the third day
after mailing, if mailed, postage prepaid, by registered or certified mail
(return receipt requested); (c) on the day after mailing if sent by a
nationally recognized overnight delivery service which maintains records of the
time, place, and recipient of delivery; or (d) upon receipt of a confirmed
transmission, if sent by telecopy or facsimile transmission, in each case to
the parties at the following addresses:


 


if to
Baxter Healthcare Corporation to:


 


Baxter
Healthcare Corporation


Rt.
120 & Wilson Road


Round
Lake, IL 60073


Attn:    General
Manager, Transfusion Therapies


Fax:  847.270.3855


 










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


 





















 


(b)                                 if to Cerus Corporation to:


 


Cerus
Corporation


2411
Stanwell Drive


Concord,
CA 94520


Attn:    Vice
President, Legal Affairs


Fax:     925.288.6278


 


(c)                                  if to
Escrow Agent to:


 


Union Bank of California, N.A.


475
Sansome Street, 12th Floor


San
Francisco California 94111


Attention:
Vice President, Corporate Trust Department


Facsimile
No.: (415) 296-6757


 


or to such
other person or address as a party may designate in writing.


 


12.                                 Governing Law. 
This Agreement shall be construed in accordance with and governed by the
laws of the State of California without giving effect to the principles of
conflicts of law thereof.


 


13.                                 Binding Effect; Benefit. 
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto.


 


14.                                 Modification. 
This Agreement may be amended or modified at any time by a writing
executed by BHC, Cerus and the Escrow Agent.


 


15.                                 Counterparts. 
This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.


 


16.                                 Headings. 
The section headings contained in this Agreement are inserted for
convenience only, and shall not affect in any way the meaning or interpretation
of this Agreement.


 


17.                                 Entire Agreement; Severability and Further Assurances.  This Agreement and all exhibits and schedules
attached hereto constitute the entire agreement among the parties and supersedes all prior and contemporaneous agreements and
undertakings of the parties in connection herewith.  No failure or delay of the Escrow Agent in
exercising any right, power or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power or remedy
preclude any other or further exercise of any right, power or


 










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


 





















 


remedy. 
In the event that any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by law, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement.  Each of the parties
hereto shall, at the request of the other party, deliver to the requesting
party all further documents or other assurances as may reasonably be necessary
or desirable in connection with this Agreement.


 


18.                                 Specimen Signatures.  Escrow Agent may rely on the
signatures of those individuals listed in Schedule IV attached to this
Agreement as the Specimen Signatures of the Parties unless the Escrow Agent has
received a written certification from the Party changing said Specimen
Signature.


 


 


{SIGNATURE
PAGE FOLLOWS}


 


 










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


 





















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the date first
written above.


 


	
   

  	
  BAXTER HEALTHCARE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   EXHIBIT

  	
   

  
	
   

  	
  Name:

  	
   EXHIBIT

  	
   

  
	
   

  	
  Title:

  	
   EXHIBIT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CERUS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   EXHIBIT

  	
   

  
	
   

  	
  Name:

  	
   EXHIBIT

  	
   

  
	
   

  	
  Title:

  	
   EXHIBIT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UNION BANK OF CALIFORNIA, N. A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   EXHIBIT

  	
   

  
	
   

  	
  Name:

  	
   EXHIBIT

  	
   

  
	
   

  	
  Title:

  	
   EXHIBIT

  	
   

  
									



 










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


 





















 


SCHEDULE I


 


INTERCEPT ESCROW DISBURSEMENT
CERTIFICATE


 


1.              Submitted by:


 


	
  Baxter

  	
   

  	
  o

  
	
  Cerus

  	
   

  	
  o

  



 


2.              Payment


Entity
to be Paid:


 


	
  Baxter

  	
   

  	
  o

  
	
  Cerus

  	
   

  	
  o

  



 


3.              Purpose of Payment:


 


	
  Marketing/Promotional Activities

  	
  o

  
	
  Plasma R&D

  	
  o

  
	
  Year End Disbursement

  	
  o

  
	
  Other                                          

  	
  o

  



 


4.              Amount of Payment                                                .


 


5.              Authorized Signatures


 


 


	
   

  	
   

  	
   

  	
   

  
	
  Baxter Healthcare Corporation

  	
  Date

  	
  Cerus Corporation

  	
  Date

  
						



 










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


 





















 


SCHEDULE II


 


UNION BANK OF
CALIFORNIA, N.A.


CORPORATE TRUST SERVICES


 


Schedule of Fees


for


Escrow Agent Services


 


Escrow Agreement


by and among


Baxter Healthcare Corporation,
Cerus Corporation


and


Union Bank of
California, N.A.


 


 


	
  Acceptance
  and Set-up Fee:

  	
   

  	
  [ * ]

  	
   

  
	
  (Due and
  payable on the closing date.)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Annual
  Escrow Administration Fee:

  	
   

  	
  [ * ]

  	
   

  
	
  (First
  year’s fee is due and payable in advance on the closing date)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Legal
  Counsel Fee:

  	
   

  	
  [ * ]

  	
   

  
	
  (use of
  Union Bank in-house legal counsel)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Transactional
  Charges:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Disbursements
  / wires (each):

  	
   

  	
  [ * ]

  	
   

  
	
  Investments
  (per sale/purchase/transfer):

  	
   

  	
  [ * ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Out-of-Pocket
  Expenses:

  	
   

  	
  [ * ]

  	
   

  



 


 


Fees
subject to acceptance and review by Union Bank of California, N.A. of all
documents pertaining to this transaction.


 










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


 





















 


SCHEDULE III


 


Wire Transfer
Instructions


 


 


For Baxter Healthcare Corporation:


 


[ * ]


 


 


For Cerus Corporation:


 


[ * ]


 


 


For Union
Bank of California, N.A.


 


[ * ]


 










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


 





















 


SCHEDULE IV


 


Specimen Signatures


 


 


	
  For Baxter Healthcare Corporation:

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Daniel
  Bischof

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Dean
  Gregory

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Kevin McCullough

  
	
   

  
	
   

  
	
  For Cerus Corporation:

  
	
   

  
	
   

  
	
   

  	
   

  
	
  David Cook

  
	
   

  
	
   

  
	
   

  	
   

  
	
  William
  Dawson

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Claes
  Glassell

  



 










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


 





















 


EXHIBIT C


 


DEVELOPMENT ACTIVITIES


 


[ * ]


 










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