EXHIBIT
10.87


 


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.


 


AMENDMENT NO. 1 TO

COLLABORATION AND LICENSE AGREEMENT


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


RECITALS


A.            The
parties have entered into the Collaboration and License Agreement dated as of
October 15, 2003 (the “Agreement”).


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


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


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


2.             Acknowledgements.  The parties acknowledge that pursuant to
Section 4.18.2 of the Agreement:


2.1           AZ
has requested to include under the scope of the Agreement the use of XenoMouse
Lambda Animals with respect to the antigen described on Exhibit A to this
Amendment (the “Amendment No. 1 Antigen”).


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


 


 


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


2.4           AZ acknowledges and agrees that it
shall be subject to the terms and conditions applicable to AZ as a sublicensee
under MRC II.  Exhibit C to this
Amendment describes such terms and conditions and contains a calculation of the
Lambda Payments payable by AZ to ABX by reason of MRC II.


3.             Lambda
Payments.


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


3.2           Within five (5) business days following the Amendment
Effective Date, AZ shall pay to ABX the first Lambda Payment [Confidential
Treatment Requested]. AZ shall make each Lambda Payment to ABX at
least five (5) business days before such Lambda Payment is due to ABX’s
licensors under the ABX In-Licenses referenced in Section 2.2 of this
Amendment.


3.3           Examples of calculations of Lambda
Payments, including milestone amounts and royalty percentage rates, are set
forth on Exhibit D to this Amendment.


4.             Amendments
to the Agreement.


4.1           Section
1.203 of the Agreement is amended and restated in its entirety as follows:


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


5.             Miscellaneous.


5.1           Continuing
Effect.  This Amendment shall be
effective for all purposes as of the Amendment Effective Date.  Except as otherwise expressly modified by
this Amendment, the Agreement shall remain in full force and effect in
accordance with its terms.


 


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5.2           Governing
Laws.  This Amendment shall be
governed by, interpreted and construed in accordance with the laws of the State
of New York, without regard to conflicts of law principles.


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


IN WITNESS
WHEREOF, the parties have caused this Amendment to be executed by their
respective duly authorized officers as of the Amendment Effective Date.


	
   

  	
  ABGENIX, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Raymond M. Withy

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Raymond M. Withy

  
	
   

  	
   

  	
  (Printed Name)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  President and
  CEO

  
	
   

  	
   

  	
  (Title)

  
	
   

  	
   

  	
   

  
	
   

  	
  ASTRAZENECA UK LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ C.R.W. Petty

  
	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  C.R.W. Petty

  
	
   

  	
   

  	
  (Printed Name)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorised
  Signatory

  
	
   

  	
   

  	
  (Title)

  



 


 


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EXHIBIT A


 


Amendment No. 1 Antigen


 


[Confidential Treatment
Requested]


 


 


 


 


 


 


 


 


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EXHIBIT B


 


BABRAHAM AGREEMENT


 


1.             Terms and
Conditions of the Babraham Agreement Applicable to AZ.


1.1           All sums due to Babraham pursuant to
this Amendment [Confidential
Treatment Requested].


1.2           AZ shall indemnify and hold harmless
Babraham and Babraham’s officers, directors, employees and agents from and
against any and all losses, liabilities, damages and expenses (including
reasonable attorneys’ fees and costs) incurred as a result of any third party
claims, demands, actions or other proceedings to the extent arising from:


(a)           any breach by AZ of the terms of this
Amendment; or


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


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


1.4           Termination of AZ’s rights and
obligations under this Amendment with respect to the Babraham Agreement shall
not affect the accrued rights of AZ, ABX or Babraham arising in any way out of
this Amendment as of the date of such termination and in particular but without
limitation the right of either party to recover damages against the others, and
all provisions of the Babraham Agreement which are expressed to survive the Babraham
Agreement shall remain in full force and effect.


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


2.             Calculation of
Lambda Payments under Babraham Agreement.


The Lambda Payments
payable by AZ to ABX pursuant to Section 7.2.2 of the Babraham Agreement [Confidential Treatment Requested] that are
based on [Confidential
Treatment Requested] that constitute “Licensing Income” (as defined
in Section 7.2.2 of the Babraham Agreement), shall be calculated as
follows:


[Confidential Treatment
Requested]


 


 


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EXHIBIT C


 


MRC II


 


1.             Terms and
Conditions of MRC II Applicable to AZ.


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


1.2           AZ shall indemnify, defend and hold
harmless the Medical Research Council and its trustees, officers and employees
against all claims and expenses including reasonable legal expenses and
reasonable attorneys’ fees arising out of the death of or injury to any person
or persons or out of any damage to property and against any other claim, proceeding,
demand, expense and liability of any kind whatsoever resulting from the
production, manufacture, sale, use, lease, consumption or advertisement of the
Biological Materials and Information (as defined in MRC II) of Licensed
Products (as defined in MRC II) by AZ.


1.3           Except to the extent that AZ is
required under any laws or government regulations or by the rules of any stock
exchange of any country, AZ shall not use the name of the Medical Research
Council nor of any of its employees or officers or inventors or originators of
the Property Rights (as defined in MRC II) nor any adaptation thereof in any
advertising, promotional or sales literature without first obtaining the prior
written consent of the Medical Research Council, which consent shall not be
unreasonably withheld.


2.             Calculation of
Lambda Payments under MRC II.


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


 


 


 


 


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EXHIBIT D


 


LAMBDA PAYMENT EXAMPLES(1)


 


	
  Milestone

  	
   

  	
  Amount AZ pays to ABX applicable to Non-Lambda
  Antibodies

  	
   

  	
  Amount AZ pays to ABX applicable to Lambda
  Antibodies while MRC I(2) is still in effect

  	
   

  	
  Amount AZ pays to ABX applicable to Lambda
  Antibodies after MRC I has expired

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Confidential Treatment Requested]

  	
   

  	
  [Confidential Treatment Requested]

  	
   

  	
  [Confidential Treatment Requested]

  	
   

  	
  [Confidential Treatment Requested]

  



 


 


	
  Royalty Rate payable by AZ to ABX applicable to
  Non-Lambda Antibodies

  	
   

  	
  Royalty Rate payable by AZ to ABX applicable to
  Lambda Antibodies while MRC I is still in effect

  	
   

  	
  Royalty Rate payable by AZ to ABX applicable to
  Lambda Antibodies after MRC I has expired

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Confidential Treatment Requested]

  	
   

  	
  [Confidential Treatment Requested]

  	
   

  	
  [Confidential Treatment Requested]

  



 


 


 












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


 


(2)                  License Agreement dated March 29, 1994 by and among
Medical Research Council, Agricultural and Food Research Council Institute of
Animal Physiology and Genetics Research of Babraham Hall, Marianne Bruggermann
c/o Institute of Animal Physiology and Genetics Research, Babraham Hall, and
Cell Genesys, Inc (“MRC I”).


 


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