Exhibit
10.1


 


 


ASSIGNMENT
AND LICENSE AGREEMENT


 


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


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


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


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


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


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


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


ARTICLE
1



DEFINITIONS


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


1.2          “Affiliate” shall mean any Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with another Person.  For purposes of this definition only, “control”
and, with correlative meanings, the terms “controlled  by” and “under common control with”
shall mean (a) the possession, directly or indirectly, of the power to direct
the management or policies of a Person, whether through the ownership of


 


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voting securities
or by contract relating to voting rights or corporate governance, or (b) the
ownership, directly or indirectly, of at least fifty percent (50%) of the
voting securities or other ownership interest of a Person.  For purposes of this Agreement, neither
Medarex, Celldex, nor Genmab A/S shall be deemed to be an Affiliate of the
other(s); but for avoidance of doubt, MI and GPI shall be deemed to be
Affiliates of each other.


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


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


1.5          “Antibody Targeting Technology Field” shall
mean the use of an antibody, or fragment thereof, whereby the antibody or
fragment serves as a targeting means with respect to an Antigen-Presenting Cell
for the purpose of modulating an immune response in any of the following
manners: (a) an antibody or fragment chemically attached or genetically fused
to an antigen (including an antigen that is an antibody, or fragment thereof,
that encodes an idiotype antigen), whereby the antibody, or fragment thereof,
serves as a targeting means for delivering such antigen to an
Antigen-Presenting Cell for the purpose of eliciting an immune response, (b) an
antibody or fragment chemically attached or genetically fused to a toxin or
radionuclide, whereby the antibody, or fragment thereof, serves as a targeting
means for delivering such toxin or radionuclide to an Antigen-Presenting Cell
for the purpose of decreasing, down-regulating or eliminating the activity of
such Antigen-Presenting Cell, (c) an antibody or fragment chemically attached
or genetically fused to a cytokine, adjuvant, or other immuno-modulatory
compound, whereby the antibody, or fragment thereof, serves as a targeting
means for delivering such compound to an Antigen-Presenting Cell for the
purpose of modulating the activity of such Antigen-Presenting Cell, and (d) an
antibody, or fragment thereof, alone, whereby the antibody or fragment binds to
a particular antigen on the surface of an Antigen-Presenting Cell and through
such binding modulates the activity of such Antigen-Presenting Cell.  For the avoidance of doubt, “Antibody
Targeting Technology Field” shall not include the use of a first
antibody, or fragment thereof, chemically attached or genetically fused to a
second antibody, or fragment thereof (except for a second antibody, or fragment
thereof, that encodes an idiotype antigen), whereby the first antibody, or
fragment thereof, serves as a targeting antibody to an Antigen-Presenting Cell
and the second antibody, or fragment thereof, attaches to an antigen, for the
purpose of eliciting an immune response. 
Further, with respect to Licensed Products comprising the Murine
Anti-CD64 Antibody(ies), “Antibody Targeting Technology Field” shall
not


 


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include Licensed Products
for diagnostic use, unless so agreed by the Parties in writing following
request by Celldex to obtain such rights and Medarex’s confirmation that no
Third Party retains blocking rights pursuant to an agreement with Medarex in
effect as of the time of such request.


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


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


1.8          “Anti-Mannose Receptor HuMAb Antibody” shall
mean (a) the fully human antibody known as B11, (b) any fully human
antibody(ies) raised in those HuMAb Mice set forth under the heading
“Anti-Mannose Receptor Immunized Mice” on Appendix D and that are
subsequently identified by amino acid sequence by Celldex and included herein
pursuant to Section 2.2.2, (c) any Research Antibody that is [*****] and
included herein pursuant to Section 3.3.1.2, and (d) any Improvements to any of
the foregoing.


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


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


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


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


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












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


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


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


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


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


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


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


 


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have made, import,
use, sell, offer for sale, or otherwise dispose of, including all discovery
research, development, registration, modification, enhancement, improvement,
manufacture, storage, formulation, exportation, transportation, distribution,
promotion and marketing activities related thereto.


1.20        “Humanized Anti-CD64 Antibody” shall mean
that certain humanized antibody currently covered by Medarex Patent
No. US 6,500,931 and US Patent Publication No. 20030144483 and
identified as H22 and any Improvements thereto made by or on behalf of Celldex
or its Affiliates or Sublicensees.


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


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


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


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












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


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


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


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


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


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


1.30        “Murine Anti-CD64 Antibody” shall mean those
certain mouse antibodies currently covered by Medarex Patent No. 4, 954,
617 and identified as M22, M32.2 and 197, and any Improvements thereto made by
or on behalf of Celldex or its Affiliates or Sublicensees.


1.31        “Net Sales” shall mean the following,
calculated in accordance with GAAP:  the
amount invoiced by Celldex and its Affiliates and Sublicensees for the
worldwide sale of Royalty-Bearing Product(s) to Third Parties, less deductions
for:


1.31.1     normal and customary trade, prompt payment, quantity,
volume and cash discounts, sales returns and allowances and price reductions,
including (a) those granted on












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


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account of price
adjustments, billing errors, rejected goods, damaged goods, returns and
rebates, (b) administrative and other fees and reimbursements and similar
payments directly related to the sale or delivery of Royalty-Bearing Product(s)
paid to wholesalers and other distributors, buying groups, pharmacy benefit
management organizations, health care insurance carriers and other
institutions, (c) allowances, rebates and fees directly related to the sale or
delivery of Royalty-Bearing Product(s) paid to distributors and (d) chargebacks;


1.31.2     freight, postage, shipping, insurance and other
transportation costs to the extent that such items are included in the amount
invoiced;


1.31.3     customs and excise duties and other duties related to
the sales to the extent that such items are included in the amount invoiced;


1.31.4     rebates and similar payments made with respect to
sales paid for or reimbursed by any governmental or regulatory authority such
as, by way of illustration and not in limitation of the Parties’ rights
hereunder, federal or state Medicaid, Medicare or similar state program, local
program,  or equivalent foreign
governmental program;


1.31.5     sales and other taxes and duties directly related to
the sale or delivery of Royalty-Bearing Product(s) (but not including taxes
assessed against the income derived from such sale) to the extent that such
items are included in the amount invoiced;


1.31.6     amounts written off for bad debt, in each case
determined in accordance with normal internal accounting practices and GAAP,
consistently applied;


1.31.7     distribution costs and expenses to the extent that
such items are included in the amount invoiced;


provided, that with respect to the deductions specified in
subsections 1.31.1 through 1.31.7 above, an amount shall be deducted only once
regardless of how many categories may apply to it.


 


Any of the deductions listed above that involves a payment by Celldex
or its Affiliates or Sublicensees shall be taken as a deduction in the Calendar
Quarter in which the payment is accrued by such entity.  For purposes of determining Net Sales, the
Licensed Product(s) shall be deemed to be sold when invoiced and a “sale” shall
not include transfers or dispositions for charitable, promotional,
pre-clinical, clinical, regulatory or governmental purposes.


 


For purposes of calculating Net Sales of Licensed Products, sales
between or among Celldex or its Affiliates or Sublicensees shall be excluded
from the computation of Net Sales, but sales by Celldex or its Affiliates or
its Sublicensees to Third Parties shall be included in the computation of Net
Sales.


 


In the event a Royalty-Bearing Product is sold as part of a combination
product, the Net Sales from the combination product, for the purposes of
determining royalty payments, shall be determined by multiplying the Net Sales
of the combination product, during the applicable royalty reporting period, by
the fraction, A/A+B, where A is the average per unit sale price of


 


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active ingredient contained in the Royalty-Bearing Product, when sold
separately in finished form in the country in which the combination product is
sold and B is the average per unit sale price of active ingredient contained in
the other product(s) included in the combination product when sold separately
in finished form in the country in which the combination product is sold, in
each case during the applicable royalty reporting period or, if sales of the
Royalty-Bearing Product alone did not occur in such period, then in the most
recent royalty reporting period in which arms length fair market sales of such
Royalty-Bearing Product occurred.  In
the event that such average sale price cannot be determined for the
Royalty-Bearing Product, on the one hand, and all other product(s) included in
the combination product, on the other, Net Sales for the purposes of
determining royalty payments shall be mutually agreed upon by the Parties based
on the relative value contributed by each component, such agreement to be
negotiated in good faith. 
Notwithstanding the foregoing, if the application of the foregoing
computation results in a reduction of royalties that would have been payable to
Medarex hereunder but for such application, such reduction shall not exceed
[*****] of the royalties that would have been payable to Medarex hereunder but
for such application.


 


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


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


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


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


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


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












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


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


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


ARTICLE 2



ASSIGNMENT


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


2.1.1       Antibody Targeting Patents;


2.1.2       Antibody Targeting Know-How;


2.1.3       Anti-Mannose Receptor HuMAb Antibodies;


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


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


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


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


2.2          Cooperation.


2.2.1       Consents. 
Notwithstanding anything to the contrary contained in this Agreement, if
the assignment and conveyance or attempted assignment and conveyance to Celldex
of any of the Assigned Assets requires any authorizations, approvals, consents
or waivers from a Third Party or governmental or regulatory authority and such
authorizations, approvals, consents or waivers shall not have been obtained prior
to the Effective Date, then Medarex shall take such reasonable actions as are
reasonably necessary to obtain such authorizations, approvals, consents or
waivers as promptly as practicable following the Effective Date and to provide
to Celldex, pending the receipt thereof, the benefit of such Assigned Assets,


 


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


2.2.2       Identification of Anti-Mannose Receptor
HuMAb Antibodies (other than B11).  The Parties
further acknowledge that work is ongoing as of the date hereof in respect of
the Anti-Mannose Receptor HuMAb Antibodies. 
As such, the Parties agree that, in respect of any fully human
antibody(ies) raised in the HuMAb Mice against the mannose receptor antigen
that have been produced [*****], Celldex may, following the Effective Date,
[*****].  Upon such [*****], each such
antibody shall be deemed an Anti-Mannose Receptor HuMAb Antibody.


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


2.3          Assumed Liabilities, Retained
Liabilities and Taxes.


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












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


10

















 


obligations (x)
under or pursuant to the Assigned Contracts relating to periods prior to the
Effective Date or (y) relating to the use or ownership of Biological Materials
by Medarex prior to the Effective Date shall be retained by Medarex
(collectively, the “Retained Liabilities”).


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


2.4          Transfer of Existing Quantities of
Biological Materials.  Within ten (10) business days after written
notice by Celldex to Medarex that Celldex has obtained appropriate facilities
and can take possession of the Biological Materials (such written notice to be
provided by Celldex to Medarex not more than one hundred eighty (180) days
after the Effective Date, with consent to any request by Celldex for an
extension of such 180-day time period not to be unreasonably withheld by
Medarex, provided that Celldex shall not request any extensions for a total of
longer than two (2) years after the Effective Date), Medarex shall provide to
Celldex all quantities of Biological Materials identified as of the Effective
Date; provided, that physical possession of those quantities of the
Humanized Anti-CD64 Antibody that have been provided to Third Parties pursuant
to certain of the Assigned Contracts shall remain with such Third Parties;  To the extent that any Biological Materials
constitute Mice Materials for which the transfer of title by Medarex is
prohibited by the Cross License Agreement, Medarex shall retain ownership but
provide to Celldex full and complete access thereto and usage thereof.


2.5          Information Disclosure and Document
Transfer.


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


 


11

















 


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


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


2.5.4       Medarex shall maintain the original unredacted
versions of all of the laboratory notebooks and other written materials set
forth on Schedule 2.5.1 and Schedule 2.5.2 in secure storage
either at the Medarex facility or another secure site until the third
anniversary of the Effective Date; provided, that, in the case of the
foregoing Sections 2.5.1 and 2.5.2, if after the third anniversary Medarex does
not wish to maintain secure storage of such original laboratory notebooks or
other written materials, then it shall so notify Celldex, and Celldex may (but
shall not be obligated to) request that Medarex, at Medarex’s choice and at
Celldex’s cost, either (x) maintain such original laboratory notebooks or other
written materials in such secure storage facilities or (y) transfer such
original laboratory notebooks or other written materials to Celldex.  In the event that Celldex provides Medarex
with written notice that it requires copies of any redacted portion of any
original laboratory notebooks or other written materials held by Medarex for
purposes of Patent-related activities, including, Patent prosecution, maintenance,
enforcement, conduct of interferences or defense with respect to the Antibody
Targeting Patents, or other legal activities, Medarex will make such redacted
portion available for inspection for the sole purpose for which such materials
are requested; provided, that (A) the inspection is an in camera
inspection by a judge, government official or independent Third Party, or is
pursuant to an appropriate protective order or confidentiality agreement
governing the confidentiality of such materials, in each case which, in
Medarex’s sole opinion and discretion, would not impair Medarex’s rights in the
confidential information contained therein that is unrelated to the any of the
Antibody Targeting Technology, the Anti-Mannose Receptor HuMAb Antibodies, the
Biological Materials and/or the Licensed Antibodies, and (B) such inspection be
on such other terms so as not to violate the terms of any agreement between
Medarex and a Third Party.


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


 


12

















 


rights; provided,
that the foregoing shall in no way limit Medarex’s representations and
warranties set forth in Section 9.3.


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


2.7          Further Assurances with Respect to the
Celldex Focus Area.  The Parties agree that, as of the Effective
Date, Celldex is focused on the research, development and commercialization of
(i) therapeutic vaccines that modulate a patient’s natural immune response to
tumor or disease related proteins, by delivering such proteins directly to
dendritic cells or macrophages and (ii) immunomodulatory products that modulate
the activities of dendritic cells and macrophages for the treatment of
autoimmune diseases, infectious diseases or cancer (the “Celldex Focus Area”).
 The Parties acknowledge that this Agreement, including the list and
details of the Assigned Assets and the Schedules hereto, is a good faith effort
by the Parties under the circumstances to identify, as of the Effective Date,
all items and rights to be assigned or licensed to Celldex by Medarex hereunder
with respect to the Celldex Focus Area, but that such effort may be incomplete
or may be over-inclusive or under-inclusive with respect to such assignments
and licenses.  In the event that, at any time and from time to time during
the twenty-four (24) month period after the Effective Date, (a) Celldex in good
faith identifies additional items (including Biological Materials) or rights
within the Celldex Focus Area that were owned or controlled by Medarex as of
the Effective Date and that Celldex believes should have been assigned,
licensed or physically transferred to Celldex by Medarex pursuant to this
Agreement but which were not so assigned, licensed or physically transferred,
or (b) Medarex determines in good faith that it requires items or rights
outside the Celldex Focus Area, which items or rights were assigned,
exclusively licensed or physically transferred (and, in the case of physical
transfer, no original or copy remains with Medarex from which Medarex can
produce duplicates) to Celldex pursuant to this Agreement, then, in the case of
either (a) or (b), the applicable Party shall notify the other Party in writing
with respect to the relevant items or rights, providing in such notice a
detailed explanation and the requested resolution with respect to such items or
rights.  Thereafter, the Parties shall
negotiate in good faith an appropriate outcome with respect to the identified
items or rights; provided, that in any event any return or grant back to
Medarex by Celldex must first be approved by Celldex’s Conflict of Interest
Committee (or such other committee as is comprised solely of independent
directors); and provided, further, that in the event that the Parties are
unable to agree upon such appropriate outcome, then the non-requesting Party
shall have the right to make the final determination with respect to the
resolution of such request.  For
avoidance of doubt, the definition and use of the term “Celldex Focus Area” is


 


13

















 


strictly for
purposes of this Section 2.7 and shall not be deemed to limit in any way any
grant hereunder or any ability of Celldex to engage in its business after the
Effective Date.


ARTICLE
3



LICENSES TO CELLDEX; RETAINED RIGHTS.


3.1          Licensed Products.


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


3.1.2       Subject to the terms and conditions of this Agreement,
Medarex hereby grants to Celldex an exclusive, worldwide, royalty-bearing (as
set forth in Article 4) license, with the right to sublicense as provided in Section
3.8.1, under the HuMAb Technology and the Medarex Technology to research,
develop, make, have made, use, sell, offer for sale and import (a) Licensed
Royalty-Bearing Products solely in the Antibody Targeting Technology Field and
(b) Anti-Mannose Products.


3.2          Hybridoma Cell Lines; Research License.


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


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


3.3          Research Antibodies.


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


 


14

















 


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


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


3.4          HuMAb Technology License Availability. 
In the event Celldex desires to obtain an assignment of a given
Anti-Mannose Receptor HuMAb Antibody pursuant to Section 2.2.2 or 3.3.1.2 or a
license to a given Research Antibody pursuant to Section 3.3.1.3, Celldex shall
provide Medarex with a detailed written description of [*****] and such other
information as Medarex may reasonably request. 
Within thirty (30) days of receipt of all such information, Medarex
shall determine whether or not it can effect such assignment or license.  Medarex shall not be obligated to effect a
requested assignment or license only if, at the time the assignment or license
is requested by Celldex, Medarex is (i) already conducting an internal program
with respect to such antigen or antibody (either alone or with a collaborator),
(ii) in discussions with a Third Party in good faith to obtain or grant
exclusive rights to such antigen or antibody, or (iii) legally prohibited from
granting such assignment or license, whether pursuant to a Third Party
agreement or otherwise.


3.5          Covenant Not to License or Use;
Medarex Option.


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












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


15

















 


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


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


3.7          Existing Grants; No Other Rights.


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












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


16

















 


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


3.8          Sublicenses.


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


3.8.2       The Parties recognize that, pursuant to the Cross
License Agreement, Medarex may not grant Celldex the right to directly grant
sublicenses under certain HuMAb Technology that is covered by the Cross License
Agreement to sell, lease, and offer for sale or lease Royalty-Bearing
Products.  So long as such provisions
are in effect, if Celldex grants or desires to grant a sublicense to a
particular Sublicensee under the HuMAb Technology pursuant to Sections 3.1, 3.2
or 3.3  to
sell, lease, and offer for sale or lease a particular Royalty-Bearing Product,
then Medarex shall enter into an agreement with such Sublicensee which grants a
direct license to such Sublicensee under such of the HuMAb Technology that is
covered by the Cross License Agreement to sell, lease, and offer for sale or
lease such Royalty-Bearing Product on the same terms and conditions as the
sublicense granted by or desired to be granted by Celldex to such Sublicensee
(“Direct
Sublicense Agreement”); provided, that each such Direct
Sublicense Agreement granted by Medarex shall: (a) be consistent with all the
terms and conditions of this Agreement, (b) provide that all performance
obligations of such Sublicensee, including with respect to development and
commercialization of Royalty-Bearing Products and payment of amounts owing
under the sublicense granted to such Sublicensee by Celldex, shall be owed to
Celldex and not to Medarex, (c) not conflict with any of the rights granted
under this Agreement, (d) provide that Celldex is a third party beneficiary
under such Direct Sublicense Agreement, with the right, at Celldex’s expense,
to enforce the terms and conditions of such Direct Sublicense Agreement against
such Sublicensee, including the right to collect all monies due to Celldex from
such Sublicensee under such Direct Sublicense Agreement, and (e) be subject to
Celldex’s approval, such approval not to be unreasonably withheld.  Further, it is understood and agreed by
Celldex that, in such sublicense granted by Celldex to such Sublicensee,
Celldex shall make the rights related to such certain HuMAb Technology granted
by Medarex to Celldex subject to such direct license granted by Medarex to such
Sublicensee, to the extent necessary


 


17

















 


such that the
rights granted by Medarex to Celldex hereunder shall not be in conflict with
the rights granted to such Sublicensee by Medarex under this Section 3.8.2.


ARTICLE
4



FINANCIAL PROVISIONS


4.1          Payments to Medarex.


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


	
   

  	
   

  	
  Annual
  Net Sales per 

  Royalty-Bearing
  Product

  	
   

  	
  Royalty
  Rate

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Portion
  of Annual Net Sales

  	
   

  	
  [*****]

  	
   

  	
  [*****]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Portion
  of Annual Net Sales

  	
   

  	
  [*****]

  	
   

  	
  [*****]

  



 


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


4.2          Royalty Rates and Term.


4.2.1       Royalty Term for Licensed Royalty-Bearing
Products.  With respect to the royalty rates for
Licensed Royalty-Bearing Products, the Parties acknowledge and agree that the
Patent rights and Know-How licensed pursuant to this Agreement justify royalty
rates of differing amounts with respect to sales of such Licensed Royalty-Bearing
Products, which rates could be applied separately to Licensed Royalty-Bearing
Products involving the exercise of such Patent rights and/or the incorporation
of such Know-How, and that if such royalties were calculated separately,
royalties relating to Patent rights and royalties relating to Know-How












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


18

















 


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


4.2.2       Royalty
Term for Anti-Mannose Products. In consideration for the transfer of the Anti-Mannose
Receptor HuMAb Antibodies to Celldex by Medarex as part of the Assigned Assets,
the Parties have agreed to adopt the royalty rates set forth in Section 4.1.1
hereof with respect to the Anti-Mannose Products. The royalties due pursuant to
Section 4.1.1 shall be payable on a country-by-country and Anti-Mannose
Product-by-Anti-Mannose Product basis until the date which is the later of: (a)
the expiration of the last to expire of the Valid Claims under the HuMAb
Patents and the Antibody Targeting Patents, as applicable, covering the
Anti-Mannose Product in each country of sale of such Anti-Mannose Product (such
expiration to occur only after expiration of extensions of any nature to such
Patents which may be obtained under applicable statutes or regulations in the
respective countries, such as the Drug Price Competition and Patent Term
Restoration Act of 1984 in the U.S.A. and similar Patent extension laws in
other countries) to the extent that the sale of such Anti-Mannose Product would,
but for such license, infringe such Valid Claim, and (b) the tenth anniversary
of the First Commercial Sale of such Anti-Mannose Product in such country.  Upon expiration of the royalty term with
respect to an Anti-Mannose Product in a country (other than as a result of the
early termination of this Agreement), and payment to Medarex of all amounts due
under this Agreement with respect to such Anti-Mannose Product in such country,
no further royalties or payments of any kind with respect to such Anti-Mannose
Product shall be due hereunder.


4.2.3       Pending Patent Applications. 
The Parties acknowledge that Medarex has filed, and during the Term
might file additional, applications for patents that, upon issuance, would
constitute a Medarex Patent, Antibody Targeting Patent or HuMAb Patent.  In respect of any such application that was
prosecuted in good faith and for which a patent issues during the Term, the
claims included in such issued patent (a “Subject Patent”) shall, to the extent
otherwise meeting the criteria set forth in the definition of Valid Claim, be
deemed “Valid



 


19

















 


Claims” for purposes of computing royalties hereunder,
commencing on the date of issuance of the Subject Patent.  In addition, where Celldex would have owed
additional royalties to Medarex hereunder for the period commencing on the
filing date to which the application for a Subject Patent was entitled and
ending on the date of issuance of the Subject Patent had the claims included in
such Subject Patent been deemed Valid Claims from such filing date, then any
such additional royalties shall be due retroactively from Celldex to Medarex in
respect of such claims.  Medarex shall
promptly notify Celldex of the issuance of any Subject Patent, and Celldex
shall calculate and pay within ninety (90) days following such notice any
retroactive royalties payable under this Section 4.2.3 in respect of such
Subject Patent, such payment to include interest at the then-current rate for a
one-year U.S. Treasury Bill.


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


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


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


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


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


 


20

















 


4.8          Records Retention; Audit.


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


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


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


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


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


 


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


ARTICLE 5



CONFIDENTIALITY


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


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


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


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


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


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


5.2          Permitted Use and Disclosures. 
Each Party hereto may use or disclose information disclosed to it by the
other Party to the extent such use or disclosure is reasonably necessary in
complying with applicable governmental regulations or otherwise submitting
information to tax or other governmental authorities, conducting clinical
trials, or making a permitted sublicense or otherwise exercising its rights hereunder;
provided, that if a Party is required to make any such disclosure of the
other Party’s Confidential Information, other than pursuant to a
confidentiality agreement, it shall (a) give reasonable advance notice to the
latter Party of such disclosure, (b) if such advance notice is not possible,
provide notice of such disclosure immediately thereafter, (c) to the extent
possible, minimize the extent of such disclosure, and (d) save to the extent
inappropriate in the case of patent applications, use all reasonable efforts to
secure confidential treatment of such information prior to its disclosure
(whether through protective orders or otherwise), it being understood that any
information so disclosed shall otherwise remain subject to the limitations on
use and disclosure hereunder.












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


22

















 


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


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


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


5.6          Publications. Subject to any Third Party rights
existing as of the Effective Date, Medarex shall submit to Celldex for review
and approval all proposed academic, scientific and medical publications and
public presentations relating to any Licensed Product or Anti-Mannose Product
containing HuMAb Technology or Medarex Technology for review in connection with
preservation of Patent rights and trade secrets and/or to determine whether
Confidential Information should be modified or deleted from the proposed
publication or public presentation. 
Written copies of such proposed publications and presentations shall be
submitted to Celldex no later than sixty (60) days before submission for
publication or presentation and Celldex shall provide its comments with respect
to such publications and presentations within thirty (30) days of its receipt
of such written copy.  The review period
may be extended for an additional thirty (30) days if Celldex can demonstrate a
reasonable need for such extension including the


 


23

















 


preparation and
filing of patent applications.  By
written agreement, this period may be further extended.  Medarex will comply with standard academic
practice regarding authorship of scientific publications and recognition of
contribution of other Persons in any publications relating to any Licensed
Product or Anti-Mannose Product.


ARTICLE 6



INTELLECTUAL PROPERTY; REGULATORY


6.1          Intellectual Property Ownership.


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


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


6.1.3       Ownership of HuMAb Technology.


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


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


6.1.3.3    In light of the foregoing,
Medarex shall own and retain all right, title and interest in and to all HuMAb
Technology, including any and all Improvements with respect to HuMAb Technology
that are conceived, discovered, developed or otherwise made, as necessary to
establish authorship, inventorship or ownership under applicable law, by or on
behalf of Celldex, its Affiliates, its successors or permitted assignees, or
their licensees or Sublicensees, whether or not patented or patentable, and any
and all Patent and other intellectual property rights with respect
thereto.  Accordingly, Celldex shall
promptly disclose to Medarex in writing, the conception or reduction to
practice, or the discovery, development or making of any


 


24

















 


HuMAb Technology
and shall, and does hereby, assign, and shall cause its Affiliates, successors,
and permitted assignees, and their licensees and Sublicensees, to so assign, to
Medarex, without additional compensation, all of their respective rights, title
and interests in and to any such Improvements.


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


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


6.4          Third Party Litigation. 
In the event that a Third Party institutes a Patent infringement suit
(including any suit alleging the invalidity or unenforceability of the Patents)
against either Party or its respective Affiliates, licensees or permitted
Sublicensees during the Term, alleging that any activities hereunder, infringes
one or more Patents, or other intellectual property rights held by such Third
Party (an “Infringement Suit”), the Parties shall cooperate with one
another in defending such suit; provided, that the Party responsible for
directing and controlling the Infringement Suit (as provided hereinafter) shall
reimburse the other Party for all


 


25

















 


reasonable costs
and expenses incurred in rendering such cooperation, including reasonable
attorneys’ fees.  Medarex shall direct
and control, at its sole cost and expense, any Infringement Suit with respect
to the HuMAb Technology and the Medarex Patents (including with respect to any
inventions claimed or described therein). 
Celldex shall direct and control, at its sole cost and expense, any
Infringement Suit with respect to the Antibody Targeting Patents (including with
respect to any inventions claimed or described therein).


6.5          Enforcement.


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


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


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


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


 


26

















 


ARTICLE 7



TERM AND TERMINATION


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


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


7.3          Accrued Rights; Surviving Obligations.


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


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


ARTICLE
8



INDEMNIFICATION


8.1          Indemnification of Medarex. 
Celldex shall indemnify Medarex, its Affiliates and their respective
directors, officers, employees and agents, and defend and save each of them harmless,
from and against any and all losses, damages, liabilities, costs and expenses
(including reasonable attorneys’ fees and expenses) in connection with any and
all liability, suits, investigations, claims or demands (collectively, “Losses”)
arising from or occurring as a result of 
(a) any breach by Celldex of its representations, warranties, covenants
or obligations under this Agreement, (b) the failure of Celldex to assume, pay,
perform and discharge any Assumed Liabilities, including any breach after the
Effective Date of the Assigned Contracts, or (c) the exercise of rights granted
by or on behalf of Medarex under this Agreement, including any infringement or
Third Party personal injury or damage to tangible personal property resulting,
in the case of each clause (a), (b) and (c) by or on behalf of Celldex or its
Affiliates or


 


27

















 


Sublicensees.  The foregoing obligation to indemnify,
defend and save harmless shall not apply to the extent of any Losses for which
Medarex has an obligation to indemnify Celldex pursuant to Section 8.2.  For any such Losses as to which each Party
has an indemnification obligation pursuant to the first sentences of Sections
8.1 and 8.2, each Party shall indemnify the other to the extent of the
indemnifying Party’s respective fault (a Party’s fault being defined by those
categories for which it must indemnify the other Party pursuant to the first
sentence of Section 8.1 or 8.2) for the Losses.


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


8.3          Indemnification Procedure.


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


8.3.2       Third Party Claims. 
Subject to Section 6.4, the obligations of an indemnifying Party under
this Article 8 with respect to Losses arising from claims of any Third Party
that are subject to indemnification as provided for in Section 8.1 or 8.2 (a “Third Party
Claim”) shall be governed by and be contingent upon the following
additional terms and conditions:


 


28

















 


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


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


8.3.2.3          Settlement. 
With respect to any Losses relating solely to the payment of money
damages in connection with a Third Party Claim and that will not result in the
Indemnitee’s becoming subject to injunctive or other relief or otherwise
adversely affect the business of the Indemnitee in any manner, and as to which
the indemnifying Party shall have acknowledged in writing the obligation to
indemnify the Indemnitee hereunder, the indemnifying Party shall have the sole
right to consent to the entry of any judgment, enter into any settlement or
otherwise dispose of such Loss, on such terms as the indemnifying Party, in its
sole discretion, shall deem appropriate. 
With respect to all other Losses in connection with Third Party Claims,
where the indemnifying Party has assumed the defense of the Third Party Claim
in accordance with Section 8.3.2.1, the indemnifying Party shall have authority
to consent to the entry of any judgment, enter into any settlement or otherwise
dispose of such Loss provided it obtains the prior written consent of the
Indemnified Party (which consent shall not be unreasonably withheld or
delayed).  The indemnifying Party shall
not be liable for any settlement or other disposition of a Loss by an
Indemnitee that is reached without the written consent of the indemnifying
Party.  Regardless of whether the
indemnifying Party chooses to defend or prosecute any Third Party Claim, no
Indemnitee shall admit any liability with respect to, or settle, compromise or
discharge, any Third Party Claim without the prior written consent of the
indemnifying Party.


 


29

















 


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


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


ARTICLE
9



REPRESENTATIONS, WARRANTIES AND COVENANTS


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


9.2          Biological Materials. 
With respect to the transfer of Biological Materials by Medarex to
Celldex pursuant to Section 2.4, Celldex acknowledges and agrees as follows:


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


9.2.2       Celldex assumes all liability for claims for damages
against it or Medarex by Third Parties which may arise from any use, handling,
storage or disposal of the Biological Materials by Celldex, its Affiliates and
Sublicensees and further Celldex hereby forever generally and completely
releases and discharges Medarex, its Affiliates and their respective directors,
officers, employees and agents of and from any and all claims, obligations,
liabilities


 


30

















 


and demands of
every kind and nature, in law, equity, statute or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, anticipated and
unanticipated, liquidated or unliquidated, for damages actual and consequential,
past, present and future, arising out of or in any way related to the
Biological Materials or the use thereof.


9.3          Additional Medarex Representations,
Warranties and Covenants.


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


9.3.1.1          each item constituting Assigned Assets is assigned,
transferred and otherwise conveyed free and clear of all liens and
encumbrances.


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


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


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


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


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


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


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


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


 


31

















 


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


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


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


ARTICLE
10


MISCELLANEOUS


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


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


 


32

















 


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


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


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


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


	
  If to Celldex, to:

  
	
   

  	
  Celldex Therapeutics, Inc.

  
	
   

  	
  519 Route 173W

  
	
   

  	
  Bloomsbury, New Jersey 08804

  
	
   

  	
  Attention: 
  Chief Executive Officer

  
	
   

  	
  Facsimile:  (908) 713-6002

  



 


 


33

















 


	
  with a copy to:

  
	
   

  	
  Morgan, Lewis & Bockius LLP

  
	
   

  	
  502 Carnegie Center

  
	
   

  	
  Princeton, New Jersey  08540

  
	
   

  	
  Attention: 
  Randall B. Sunberg, Esq.

  
	
   

  	
  Facsimile:  (877) 432-9652

  
	
   

  	
   

  
	
  If to Medarex, to:

  
	
   

  	
  Medarex, Inc.

  
	
   

  	
  707 State Road

  
	
   

  	
  Princeton, New Jersey 08540-1437

  
	
   

  	
  Attention: President

  
	
   

  	
  Facsimile: (609)
  430-2850

  
	
  with copies to:

  
	
   

  	
  Medarex, Inc.

  
	
   

  	
  707 State Road

  
	
   

  	
  Princeton, New Jersey 08540-1437

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Facsimile: (609)
  430-4215

  
	
   

  	
   

  
	
   

  	
  Medarex, Inc.

  
	
   

  	
  707 State Road

  
	
   

  	
  Princeton, New Jersey 08540-1437

  
	
   

  	
  Attention: 
  Contracts Administrator

  
	
   

  	
  Facsimile: (609)
  430-4215

  



 


or to such other address as the Party to whom notice
is to be given may have furnished to the other Party in writing in accordance
herewith.  Any such communication shall
be deemed to have been given (a) when delivered, if personally delivered or
sent by facsimile on a business day, (b) on the business day after dispatch, if
sent by nationally-recognized overnight courier, and (c) on the third business
day following the date of mailing, if sent by mail.  It is understood and agreed that this Section 10.6 is not
intended to govern the day-to-day business communications necessary between the
Parties in performing their duties, in due course, under the terms of this
Agreement.


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


10.8        Relationship of the Parties. 
It is expressly agreed that the Parties shall be independent contractors
of one another and that the relationship between the Parties shall not
constitute a partnership, joint venture or agency.  Neither Party shall have the authority to make


 


34

















 


any statements,
representations or commitments of any kind, or to take any action, which shall
be binding on the other, without the prior written consent of the other to do
so.  All Persons employed by a Party
shall be employees of such Party and not of the other Party and all costs and
obligations incurred by reason of any such employment shall be for the account
and expense of such Party.


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


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


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


10.12      Further Assurance.


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


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


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


10.14      References.  Unless
otherwise specified, (a) references in this Agreement to any Article, Section,
Schedule or Appendix shall mean references to such Article, Section, Schedule


 


35

















 


or Appendix of
this Agreement, (b) references in any section to any clause are references to
such clause of such section, and (c) references to any agreement, instrument or
other document in this Agreement refer to such agreement, instrument or other
document as originally executed or, if subsequently varied, replaced or
supplemented from time to time, as so varied, replaced or supplemented and in
effect at the relevant time of reference thereto.


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


[Signature page follows]


 


36

















 


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


	
  Medarex, Inc.

  	
  Celldex Therapeutics, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Genpharm
  International, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 


37

















 


APPENDIX A


Medarex
Patents


[*****]


 












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


 


A-1

















 


APPENDIX B


Antibody
Targeting Patents


[*****]


 


 












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


B-1

















 


APPENDIX C


Biological
Materials


[*****]












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


C-1

















 


APPENDIX D


Hybridoma
Cell Lines and Immunized Mice


(as of the Effective
Date)


[*****]


 












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


 


D-1

















 


APPENDIX
E


 


PROCESS FOR DETERMINING
[*****] RESEARCH ANTIBODIES


 












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.


 


E-1

















 


SCHEDULE 2.1.7


 


Assigned Contracts*


 


 


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


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


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


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


 


 


 


 


 


 


 


 


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

















 


SCHEDULE 2.5.1


 


Information and Materials Relating
Solely


 


 


[*****]


 


 












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

















 


SCHEDULE 2.5.2


 


Information and Materials Relating
in Part


 


[*****]


 


 












[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

















 


SCHEDULE 9.3.1


 


Exceptions to Medarex
Representations and Warranties


 


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