Q3 2011 10-Q Exhibit 10.4






Exhibit 10.4





NOTE: CERTAIN CONFIDENTIAL INFORMATION HAS BEEN
OMITTED FROM THIS DOCUMENT AND REPLACED BY "[*]". A COMPLETE COPY OF THIS DOCUMENT INCLUDING THE
CONFIDENTIAL INFORMATION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.












SECOND AMENDMENT TO





DEVELOPMENT AND LICENSE AGREEMENT








THIS SECOND AMENDMENT TO DEVELOPMENT  AND LICENSE AGREEMENT
(the "Second Amendment") is made and entered into on November 19, 2004 (the "Second Amendment Effective Date"),  by and
between NPS Pharmaceuticals, Inc. ("NPS")  and Amgen Inc. ("Amgen").   NPS and Amgen are referred to in this Second Amendment
individually as a "Party" and collectively as the "Parties."



RECITALS



WHEREAS, NPS and Amgen have previously entered into a Development  and
License Agreement effective as of December 27, 1995 (the "Original  Agreement"), as amended by that certain First Amendment to
Development and License Agreement (the "First Amendment") and this   Second   Amendment,   each   effective   as  of   the   Second
Amendment   Effective   Date (collectively, the "Agreement");  and


WHEREAS,  pursuant to Section 4.5 of the Original Agreement, NPS and Amgen
have conferred  and determined  that after the Second  Amendment  Effective  Date  NPS and Amgen desire  that  Amgen  have
responsibility  to  use  the  Amendment  Assay,  Assay  Materials  and Screening Technology to conduct the Amendment Assays and
Assays and therefore now desire to amend certain provisions of the Original Agreement as provided for herein.


NOW  THEREFORE,   in  consideration   of  the  mutual  covenants   contained   in
this Amendment and other good and valuable consideration,  the receipt and sufficiency of which is hereby acknowledged, the Parties
hereby agree as set forth herein:


1. AMENDMENT


1.1 The  following  is hereby  added  as  new  Section  1.56  - 1.60  to  Appendix  A  of  the Agreement:


1.56     "Amendment   Assay"   shall  mean  the  [*], which NPS has used
pursuant to the terms of Sections 4.4 and 4.5 of the Original Agreement for the purpose of identifying calcimimetic compounds and
determining whether such compounds meet the definition of Compounds.


1.57    "Assay Materials" shall mean (i) the [*], (ii) such other
materials as are used in performing the Amendment Assay, to the extent that such other materials are not generally commercially
available, and (iii) the protocols for performing the Amendment Assay.



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1.58    "Screening  Know-How" shall mean all information, know-how and
expertise which relates to screening compounds for calcimimetic activity at the Calcium Receptor(s), including, without
limitation, protocols for performing the Amendment Assay.


1.59    "Screening Patents" shall mean all patent
applications and issued patents owned or controlled by NPS, which cover Calcium Receptor(s) (including peptides, proteins, nucleic
acids coding therefor and cells expressing such Calcium Receptor(s)) and/or use of Calcium Receptor(s), including, without limitation,
those set forth on Exhibit 1 attached to this Second Amendment, but excluding all claims within Licensed Patents except those that, but
for the license set forth in Section 4.7 of the Agreement, would be infringed by the use or performance of the Amendment Assays.




1.60"Screening  Technology"   shall  mean, collectively, Screening Know-How and
Screening Patents.





1.2The following is hereby added as a new Sections 4.7 - 4.13 of the Agreement:




4.7      License. NPS hereby grants to Amgen a non-exclusive, fully paid-up license, under
the Screening Technology and the Licensed Technology solely to do the following in the Territory (i) screen compounds (and do such
acts as may be necessary to screen compounds), excluding proteins and nucleic acids, for calcimimetic activity at the Calcium
Receptor(s), and (ii) study the Calcium Receptor(s) (and do such acts as may be necessary to study the Calcium Receptor(s), including
without limitation to identify the crystal structure thereof both in bound and unbound conformations.  Except as otherwise provided
herein, NPS shall retain all other rights in connection with the Screening Technology.  The foregoing license in this Section 4.7 includes
the right for Amgen to permit its collaborators and contract service providers to exercise the rights granted to Amgen, provided,
however that such collaborators and/or contract service provider(s) are bound by obligations no less restrictive than those applicable to
Amgen under this Agreement.  Nothing set forth in the Agreement shall be deemed to require Amgen to screen compounds at the
request of NPS or otherwise. This paragraph supersedes Section 3.2 of the Original Agreement.


4.8       Amgen Covenants.    Amgen covenants  that  it  will  not  utilize Screening
Technology for the purpose of screening for calcilytic compounds.  NPS shall have the right to review a summary of the data generated
from such Amendment Assays (i.e. the raw results of the Amendment Assays, but excluding any chemical structure information),
except to the extent that Amgen may withhold data which Amgen is prohibited from disclosing.


4.9      Identification of Compound(s) by NPS.   Notwithstanding the provisions of Section 4.4
and 4.5 of the Original Agreement, after the Second  Amendment Effective Date,  NPS  shall  have no  obligation to





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conduct the Amendment Assays to screen Amgen Compounds, provided, however, that upon the reasonable
request of Amgen NPS shall remain obliged to conduct Amendment Assays to screen NPS Compounds and to conduct such other
tests as Amgen reasonably requests to determine if a compound meets the definition of a Compound pursuant to Section 4.5 of the
Agreement.


4.10    Identification of Compound(s) by Amgen.  During the term of the Agreement,
within thirty (30) days after determination by Amgen that any compound meets the definition of an Amgen Compound, NPS/Amgen
Compound or Third Party Compound, such compound shall be designated by Amgen as an Amgen Compound, NPS/Amgen
Compound or Third Party Compound, as the case may be.   Amgen shall notify NPS within thirty (30) days after such determination and
designation.


4.11
Supply of Assay Materials.  NPS shall deliver to Amgen the Assay Materials in reasonable condition
(including with live, active cells) as further described on Exhibit 2 attached to this Second Amendment within ten (10) days after the
Second Amendment Effective Date.   Thereafter, NPS shall deliver additional quantities of such Assay Materials as Amgen may request
within thirty (30) days of such request, and upon Amgen's reasonable request NPS shall provide reasonable technical assistance
and/or training via telephone and/or at NPS's facilities.


4.12    Restrictions.  Amgen shall not use the Assay Materials in humans under any
circumstances. Amgen shall not transfer the Assay Materials to any Third Party(ies) without the prior written consent of NPS, except
that Amgen shall have the right to transfer the Assay Materials to its corporate partners and contract services providers that are bound
by obligations no less restrictive than those applicable to Amgen under this Agreement without the consent of NPS.  Upon termination
of this Agreement if NPS so requests in writing, Amgen shall destroy or return to NPS the remaining Assay Materials (if any). The
Assay Materials and the progeny of the cell lines within the Assay Materials shall remain the property of NPS.


4.13    Warranty Disclaimer.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, ANY ASSAY MATERIALS ARE SUPPLIED "AS IS" WITH NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
ANY WARRANTY OR MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.






1.3.The following is added as a new Section 10.4 of the Agreement:


10.4    Enforcement of Screening Patents.  NPS alone shall have the right but not
the obligation, in its own name and at its sole cost and expense, to initiate  patent  infringement  proceedings  against  any  Third
Party(ies)





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suspected of infringing a claim within Screening Patents, except to the extent that such proceedings could
reasonably be expected to result in a challenge to the validity or enforceability of the Licensed Patents other than Screening Patents, in
which case NPS shall have no right to initiate or otherwise pursue such proceedings without the prior written consent of Amgen.  NPS
shall have exclusive control over the conduct of any such patent infringement proceedings, including the right to settle or compromise
such proceedings, provided, however that no such settlement or compromise shall be made by NPS, which has an adverse effect on
the rights of Amgen without Amgen's prior written consent.  If NPS elects to commence an action for infringement, Amgen shall
cooperate at NPS' sole cost and expense with reasonable requests of NPS for such cooperation.  During the term of this Agreement,
Amgen agrees to use commercially reasonable efforts to ensure that any Amgen personnel (as might reasonably be requested for
assistance by NPS) will be available to cooperate with NPS consistent with the terms set forth in this Section 10.4. Any award paid to
NPS by Third Party(ies) as a result of such patent infringement proceedings shall belong to NPS.   Notwithstanding the foregoing,
nothing in this Section 10.4 shall alter in any way either Party's rights or obligations under Section 10.1, 10.2 or 10.3 of the Original
Agreement.






2. GENERAL PROVISIONS 



2.1 Except as expressly provided for in the First Amendment and this Second
Amendment, all of the terms, conditions and provisions of the Original Agreement remain unaltered and are in full force and effect, and
as amended hereby the Agreement is hereby ratified and confirmed in all respects.  The Original Agreement, the First Amendment and
this Second Amendment shall be read and construed as one Agreement.


2.2 If any  provision of  this  Second  Amendment is  construed  to  be  invalid, illegal or
unenforceable by a court of competent jurisdiction, then the remaining provisions hereof shall not be affected  thereby
and shall be enforceable without  regard thereto.


2.3 This Second Amendment may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original hereof, and it shall not be necessary in making proof of this Amendment to
produce or account for more than one counterpart hereof.


2.4Section and subsection headings in this Second Amendment are for convenience of reference
only, do not constitute a part of this Second Amendment, and shall not affect its interpretation.


2.5All words used in this Second Amendment shall be construed to be of such number
and gender as the context requires or permits.



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2.6This Second Amendment may not be amended or modified orally, and shall be construed and
interpreted according to the laws of the State of California, excluding any choice of law rules that may direct the application of the laws
of another jurisdiction.




The Parties have caused this Amendment to be executed as of the Effective Date by signature of their duly authorized
representatives.


   



	

NPS PHARMACEUTICALS, INC.

	

AMGEN INC.


	

By: /s/ Gerard Michel

	

By:/s/ Steven Schoch


	

Name:Gerard Michel   

Title:   CFO, Vice President Business

Development

	

Name:Steven Schoch

Title:   Vice President Finance &
Controller





   

   

   




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Exhibit 1

       Screening Patents


[*]





   

   


   

   

   




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Exhibit 2

              Assay Materials



[*]


   

   


   

   

   





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