AZ AS A SUBLICENSEE UNDER MRC II.
EXHIBIT C TO
THIS AMENDMENT DESCRIBES SUCH TERMS AND CONDITIONS AND CONTAINS A CALCULATION OF
THE LAMBDA PAYMENTS PAYABLE BY AZ TO ABX BY REASON OF MRC II.
3.
LAMBDA PAYMENTS.
3.1
PURSUANT TO SECTION 4.18.2 OF THE AGREEMENT, AND NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AMENDMENT OR THE AGREEMENT (INCLUDING THE
REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION OBLIGATIONS AND FINANCIAL
OBLIGATIONS), AZ SHALL PAY TO ABX [CONFIDENTIAL TREATMENT REQUESTED], WHICH
SHALL BE IN ADDITION TO ANY OTHER PAYMENTS OWING BY AZ TO ABX PURSUANT TO
SECTION 9 OF THE AGREEMENT.
3.2
WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE AMENDMENT EFFECTIVE
DATE, AZ SHALL PAY TO ABX THE FIRST LAMBDA PAYMENT [CONFIDENTIAL TREATMENT
REQUESTED]. AZ SHALL MAKE EACH LAMBDA PAYMENT TO ABX AT LEAST FIVE (5) BUSINESS
DAYS BEFORE SUCH LAMBDA PAYMENT IS DUE TO ABX'S LICENSORS UNDER THE ABX
IN-LICENSES REFERENCED IN SECTION 2.2 OF THIS AMENDMENT.
3.3
EXAMPLES OF CALCULATIONS OF LAMBDA PAYMENTS, INCLUDING MILESTONE
AMOUNTS AND ROYALTY PERCENTAGE RATES, ARE SET FORTH ON EXHIBIT D TO THIS
AMENDMENT.
4.
AMENDMENTS TO THE AGREEMENT.
4.1
SECTION 1.203 OF THE AGREEMENT IS AMENDED AND RESTATED IN ITS
ENTIRETY AS FOLLOWS:
1.203
XENOMOUSE ANIMALS" SHALL MEAN (A) EXCEPT AS EXPRESSLY SET FORTH IN
CLAUSE (B) BELOW, THOSE MICE THAT ARE TRANSGENIC FOR THE HUMAN HEAVY CHAIN
VARIABLE IG LOCI THAT IS DESCRIBED IN MENDEZ, ET AL., NATURE GENETICS 15:
146-156 (1997), AND ANY AND ALL IMPROVED STRAINS OF SUCH MICE, AND (B) FOR THE
LIMITED PURPOSE OF THE AMENDMENT NO. 1 ANTIGEN (AS DEFINED IN AMENDMENT NO. 1 TO
THIS AGREEMENT) (I) THOSE MICE THAT ARE TRANSGENIC FOR THE HUMAN HEAVY CHAIN
VARIABLE IG LOCI THAT IS DESCRIBED IN MENDEZ, ET AL., NATURE GENETICS 15:
146-156 (1997), [CONFIDENTIAL TREATMENT REQUESTED], AND (III) ANY AND ALL
IMPROVED STRAINS OF ANY OF THE FOREGOING MICE; IN EACH CASE THAT ARE USED BY ABX
OR ITS AFFILIATES IN THEIR BUSINESS TO GENERATE ANTIBODIES FOR USE IN THE
COMMERCIAL FIELD.
5.
MISCELLANEOUS.
5.1
CONTINUING EFFECT.
THIS AMENDMENT SHALL BE EFFECTIVE FOR ALL
PURPOSES AS OF THE AMENDMENT EFFECTIVE DATE.
EXCEPT AS OTHERWISE EXPRESSLY
MODIFIED BY THIS AMENDMENT, THE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT
IN ACCORDANCE WITH ITS TERMS.
2
5.2
GOVERNING LAWS.
THIS AMENDMENT SHALL BE GOVERNED BY, INTERPRETED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES.
5.3
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED IN COUNTERPARTS,
EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL AND TOGETHER SHALL BE DEEMED TO
BE ONE AND THE SAME DOCUMENT.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their respective duly authorized officers as of the Amendment Effective Date.
ABGENIX, INC.
By:
/s/ Raymond M. Withy
(Signature)
Raymond M. Withy
(Printed Name)
President and CEO
(Title)
ASTRAZENECA UK LTD.
By:
/s/ C.R.W. Petty
(Signature)
C.R.W. Petty
(Printed Name)
Authorised Signatory
(Title)
3
EXHIBIT A
Amendment No. 1 Antigen