exv10w54



 






Exhibit - 10.54


[***] 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.


FIRST AMENDMENT

TO

COLLABORATION AND FACILITIES AGREEMENT




     This FIRST AMENDMENT (“First Amendment”) is hereby entered into as of March 24, 2005 (the
“First Amendment Effective Date”), by and between Portola Pharmaceuticals, Inc. (“Portola”) and
Cytokinetics, Inc. (“Cytokinetics”) (collectively, the “Parties”). Terms used in this First
Amendment and not otherwise defined herein shall have the meanings given to them in the Agreement
(as defined below).



RECITALS




     A. Portola and Cytokinetics are parties to the Collaboration and Facilities Agreement dated
August 19, 2004 (the “Agreement”).



     B. The Parties wish to extend the Term of the Agreement and amend certain terms and conditions
of the Agreement.



AGREEMENT




     NOW, THEREFORE, the Parties agree as follows:




	 	1.  	Section 1(oo). The following shall be added as Section 1(oo) of the
Agreement:
	 
	 	   	““Equipment” means an [***] ([***]) [***] model number [***].”
	 
	 	2.  	Purchase and Use of Equipment. Portola has purchased at its sole
cost, without reimbursement by Cytokinetics or inclusion in License Fees (subject to
Section 4(d) below), the Equipment. The Equipment shall be installed at the Master
Premises within forty-five (45) days of the First Amendment Effective Date and remain
at the Master Premises during the Term. During the Term, Portola shall maintain in
good working condition, insure and promptly replace following a casualty the
Equipment. Portola hereby grants to Cytokinetics, subject to the terms and conditions
of the Agreement, the non-exclusive right to have the Equipment used by Portola
Personnel on behalf of Cytokinetics at the Master Premises for the performance of the
Collaboration. The Equipment shall be available for use by Portola on behalf of
Cytokinetics at least [***] percent ([***]%) of the business days during the period
beginning on the date that the Equipment is installed at the Master Premises and
ending on the expiration or termination of the Term (“Availability Period”). Except
for such non-exclusive right by Cytokinetics, Portola shall own all right, title and
interest in and to the Equipment.
	 
	 	3.  	Section 4(d). The following shall be added as Section 4(d) of the
Agreement:
	 
	 	   	“(d) Payment for Use of Equipment and Other Activities.

(i) In consideration for use of the Equipment by Portola Personnel as part of the
Collaboration during the Term, and in consideration for Portola’s other activities
under the Agreement, Cytokinetics agrees to pay Portola a total of [***] dollars
($[***]) (“Equipment Use Fee”), payable (with no interest) in [***] ([***]) equal [***]
installments of [***] ($[***]) (“Installment Payments”), with the initial [***]
installment payable on January 15, 2006 and the final [***] installment payable on
October 15, 2007 (“Payment Period”).
	 
	 	  	(ii) In the event that the Agreement is terminated prior to December 31, 2005: (A) for
any reason by Portola pursuant to Section 14(d), (B) pursuant to Sections 14(a), 14(b)
or 14(e), or (C) by Cytokinetics pursuant to Section 14(c), the Equipment Use Fee (and
correspondingly the Installment Payments) shall be pro-rated to reflect the number of
months in 2005 during which the Collaboration was performed prior to the effective date
of such termination. By way of example, if the Agreement is terminated by Portola in
July of 2005, Cytokinetics would only be obligated to pay one half (1/2) of the
Equipment Use Fee, and the [***]
	 
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	 	   	Installment Payments payable during the Payment Period would be reduced to [***]
dollars and [***] cents ($[***]) each.
	 
	 	  	(iii) In the event that: (A) the Agreement is not terminated under Section 14, (B) the
Equipment is not available for use by Portola on Cytokinetics’ behalf as part of the
Collaboration for at least [***] percent ([***]%) or more of the business days during
the Availability Period, and (C) such unavailability does not result from or arise out
of Cytokinetics’ negligence, willful misconduct or breach of the Agreement, then
Cytokinetics shall be entitled to an equitable adjustment of the Equipment Use Fee (and
correspondingly the Installment Payments) to reflect the percentage of business days in
2005 where the Equipment was available for use by Portola on Cytokinetics’ behalf. By
way of example, if all the foregoing conditions in (iii)(A) – (C) are met so that the
Equipment is only available for use in the Collaboration [***] percent ([***]%) of the
business days during the Availability Period, Cytokinetics would only be obligated to
pay [***] percent ([***]%) of the Equipment Use Fee, and the [***] Installment Payments
payable during the Payment Period would be reduced to [***] dollars ($[***]) each.
	 
	 	4.  	Amendment of Section 13. Section 13 of the Agreement is hereby
replaced with the following:
	 
	 	   	“Term. The term of this Agreement shall begin on the Effective Date and end on
December 31, 2005 (the “Term”).”
	 
	 	5.  	Amendment of Exhibit D. Exhibit D to the Agreement shall be replaced
by Exhibit D-1 set forth in Schedule A to this First Amendment.
	 
	 	6.  	Amendment of Exhibit F. Exhibit F to the Agreement shall be replaced
by Exhibit F-1 set forth in Schedule B to this First Amendment.
	 
	 	7.  	Amendment of Exhibit G. Exhibit G to the Agreement shall be replaced
by Exhibit G-1 set forth in Schedule C to this First Amendment.
	 
	 	8.  	Amendment of Exhibit H. Exhibit H to the Agreement shall be replaced
by Exhibit H-1 set forth in Schedule D to this First Amendment.
	 
	 	9.  	Effectiveness. This First Amendment shall be effective upon the
First Amendment Effective Date, subject to the signing by both Parties.
	 
	 	10.  	Miscellaneous.
	 
	 	   	     (a)  Entire Agreement. The Agreement, as modified by, and together with,
this First Amendment, is the entire agreement between the Parties with respect to the
subject matter of the Agreement. Except as specifically set forth in this First
Amendment, the relationship between the parties with respect to the subject matter of
the Agreement continues to be governed by the terms of the Agreement, the provisions of
which remain in full force and effect. In the event of a conflict between the terms of
the Agreement and the terms of this First Amendment, the terms of this First Amendment
control. This First Amendment is not intended to confer any rights or remedies
hereunder upon any person other than the Parties.
	 
	 	   	     (b)  Counterparts. This First Amendment may be executed in counterparts,
each of which shall be deemed an original, and all of which together shall constitute
one instrument.





     IN WITNESS WHEREOF, this First Amendment has been executed by the Parties hereto as of the
First Amendment Effective Date.


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	PORTOLA PHARMACEUTICALS, INC.

	 	CYTOKINETICS, INC.
	 
	 	 
	By: /s/Carol Olson                    

	 	By: /s/Robert I. Blum                    
	 
	 	 
	Name: Carol Olson                              

	 	Name: Robert I. Blum                              
	 
	 	 
	Title: EVP                                             

	 	Title: Executive Vice President, Corporate 
Development and Commercial Operations 
and Chief Business Officer






 









 





SCHEDULE A TO FIRST AMENDMENT




EXHIBIT D-1




License Fee




License Fee: The License Fee shall be equal to the sum of:




[***]% of the Space Costs for the Lab Space

[***]% of the Space Costs for the Exclusive Space

[***]% of General Lab Operating Costs (excluding Direct Cytokinetics Costs)

[***]% of the General [***] Purchases

[***]% of Support Costs

[***]% of [***] Costs (excluding Direct Cytokinetics Costs)

[***]% of Maintenance and Administration Costs

and [***]% of Additional Costs


as more fully described in the table below.


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SCHEDULE B TO FIRST AMENDMENT




EXHIBIT F-1




Permitted Hazardous Materials




[***]



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treatment has been requested with respect to the omitted portions.



 









 








SCHEDULE C TO FIRST AMENDMENT




EXHIBIT G-1




Portola Hazardous Materials




[***]


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treatment has been requested with respect to the omitted portions.



 









 








SCHEDULE D TO FIRST AMENDMENT




EXHIBIT H-1




Cytokinetics Equipment




	 	 	 	 	 	 	 	 	 
	 	Equipment 
	 	 	Description 
	 	 	Cytokinetics

asset #	 
	 





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     *** Certain information on this page has been
omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.