<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1998
REGISTRATION NO. 333-49415
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 7
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ABGENIX, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 2836 94-3248826
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
INCORPORATION OR
ORGANIZATION)
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ABGENIX, INC.
7601 DUMBARTON CIRCLE
FREMONT, CALIFORNIA 94555
(510) 608-6500
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
R. SCOTT GREER
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
ABGENIX, INC.
7601 DUMBARTON CIRCLE
FREMONT, CALIFORNIA 94555
(510) 608-6500
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE OF PROCESS)
COPIES TO:
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MARIO M. ROSATI, ESQ. ALAN C. MENDELSON, ESQ.
CHRIS F. FENNELL, ESQ. PATRICK A. POHLEN, ESQ.
WILSON SONSINI GOODRICH & ROSATI COOLEY GODWARD LLP
PROFESSIONAL CORPORATION FIVE PALO ALTO SQUARE
650 PAGE MILL ROAD 3000 EL CAMINO REAL
PALO ALTO, CA 94304 PALO ALTO, CA 94306
(650) 493-9300 (650) 843-5000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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==============================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED TO BE REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------
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Common Stock, $0.0001 par value 3,450,000 $12.00 $41,400,000 $12,213(3)
==============================================================================================================================
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(1) Includes 450,000 shares which the Underwriters have the option to purchase
to cover over-allotments, if any.
(2) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(a) of the Securities Act of 1933, as amended.
(3) Previously paid.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 30, 1998
LOGO
3,000,000 SHARES
COMMON STOCK
------------------------------
All of the 3,000,000 shares of Common Stock offered hereby are being sold
by Abgenix, Inc. ("Abgenix" or the "Company"). Prior to this offering, there has
been no public market for the Common Stock of the Company. It is currently
estimated that the initial public offering price will be between $10.00 and
$12.00 per share. See "Underwriting" for information relating to the method of
determining the initial public offering price. The Common Stock has been
approved for quotation on the Nasdaq National Market, subject to official notice
of issuance, under the symbol "ABGX."
------------------------------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 6.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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UNDERWRITING
PRICE DISCOUNTS AND PROCEEDS TO
TO PUBLIC COMMISSIONS(1) COMPANY(2)
<S> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
Per Share.......................... $ $ $
- --------------------------------------------------------------------------------------------------------------
Total(3)........................... $ $ $
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(1) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(2) Before deducting expenses payable by the Company, estimated at $750,000.
(3) The Company has granted to the Underwriters a 30-day option to purchase up
to an additional 450,000 shares of Common Stock, solely to cover
over-allotments, if any. See "Underwriting." If such option is exercised in
full, the total Price to Public, Underwriting Discounts and Commissions and
Proceeds to Company will be $ , $ and $ , respectively.
------------------------------
The Common Stock is offered by the Underwriters as stated herein, subject
to receipt and acceptance by them and subject to their right to reject any order
in whole or in part. It is expected that delivery of such shares will be made
through the offices of BancAmerica Robertson Stephens, San Francisco,
California, on or about , 1998.
BANCAMERICA ROBERTSON STEPHENS LEHMAN BROTHERS
THE DATE OF THIS PROSPECTUS IS , 1998
<PAGE> 3
[ARTWORK]
Antibody products with human protein sequences may be desirable for therapy
in humans since they tend to minimize undesirable side effects. Various
approaches have evolved to engineer mouse antibodies so that they contain
proportionately more human protein sequences and thus appear more human-like to
a patient's immune system. The Company's XenoMouse technology has been developed
to produce antibodies with 100% human protein sequences.
[ARTWORK]
Abgenix believes that its XenoMouse technology offers several significant
advantages over other approaches. These advantages include generating high
affinity antibodies in vivo without the need for further antibody engineering,
as well as allowing production of such antibodies for preclinical and clinical
trials without the need for recombinant cell line development. As a result, the
Company believes that its XenoMouse technology offers the potential to develop
antibody therapeutic product candidates over a shorter timeline.
All of the Company's product candidates are at early stages of research and
development and have not been approved for sale in the United States by the
United States Food and Drug Administration ("FDA"), and therefore, no sales have
been generated. Approval of the Company's product candidates by the FDA or
corresponding European regulatory authorities could take several years and there
can be no assurance that such approval will ever be obtained. See "Risk
Factors -- Uncertainty Associated with XenoMouse Technology," "-- No Assurance
of Successful Product Development" and "-- Uncertainties Related to Clinical
Trials."
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK,
INCLUDING STABILIZING BIDS, SYNDICATE COVERING TRANSACTIONS OR THE IMPOSITION OF
PENALTY BIDS. FOR A DISCUSSION OF THESE ACTIVITIES, SEE "UNDERWRITING."
2
<PAGE> 4
NO DEALER, SALES REPRESENTATIVE OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS
OFFERING OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES
OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES OR AN OFFER TO, OR
SOLICITATION OF, ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR
SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF.
UNTIL , 1998 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL
DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS DELIVERY REQUIREMENT IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER
A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD
ALLOTMENTS OR SUBSCRIPTIONS.
------------------------
TABLE OF CONTENTS
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PAGE
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Summary..................................................... 4
Risk Factors................................................ 6
Special Note Regarding Forward-Looking Statements........... 20
Use of Proceeds............................................. 21
Dividend Policy............................................. 21
The Company................................................. 21
Capitalization.............................................. 22
Dilution.................................................... 23
Selected Financial Data..................................... 24
Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 25
Business.................................................... 31
Management.................................................. 50
Certain Transactions........................................ 59
Principal Stockholders...................................... 62
Description of Capital Stock................................ 64
Shares Eligible for Future Sale............................. 67
Underwriting................................................ 69
Legal Matters............................................... 70
Experts..................................................... 71
Additional Information...................................... 71
Index to Financial Statements............................... F-1
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Abgenix and the Abgenix logo are trademarks of the Company. XenoMouse is a
registered trademark of Xenotech, L.P. ("Xenotech"). All other trademarks or
service marks appearing in this Prospectus are the property of their respective
holders.
The Company intends to furnish its stockholders with annual reports
containing financial statements audited by an independent public accounting firm
and quarterly reports containing unaudited interim financial information for
each of the first three fiscal quarters of each fiscal year of the Company.
Abgenix has the right to use XenoMouse technology through Xenotech, its
joint venture equally owned with a subsidiary of Japan Tobacco Inc. ("Japan
Tobacco"). The Company's principal executive offices are located at 7601
Dumbarton Circle, Fremont, California 94555, and its telephone number is (510)
608-6500.
3
<PAGE> 5
SUMMARY
The following summary is qualified in its entirety by the more detailed
information, including "Risk Factors" and the Financial Statements and Notes
thereto, appearing elsewhere in this Prospectus. This Prospectus contains
forward-looking statements that involve risks and uncertainties. The Company's
actual results could differ materially from those anticipated in these
forward-looking statements as a result of certain factors, including those set
forth under "Risk Factors" and elsewhere in this Prospectus. Except as otherwise
indicated, all information in this Prospectus assumes no exercise of the
Underwriters' over-allotment option and gives effect to (i) the automatic
conversion of all outstanding shares of the Company's Redeemable Convertible
Preferred Stock ("Preferred Stock") into an aggregate of 7,844,352 shares of
Common Stock upon the closing of this offering and (ii) the filing, upon the
closing of this offering, of a Restated Certificate of Incorporation.
THE COMPANY
Abgenix, a biopharmaceutical company, develops and intends to commercialize
antibody therapeutic products for the prevention and treatment of a variety of
disease conditions, including transplant-related diseases, inflammatory and
autoimmune disorders, and cancer. The Company has developed a proprietary
technology which it believes enables it to quickly generate high affinity, fully
human antibody product candidates to essentially any disease target appropriate
for antibody therapy ("XenoMouse technology"). Abgenix intends to use its
XenoMouse technology to build and commercialize a large and diversified product
portfolio through the establishment of corporate collaborations and internal
product development programs. The Company has recently established collaborative
arrangements with Pfizer Inc. ("Pfizer"), Schering-Plough Research Institute
("Schering-Plough") and Genentech, Inc. ("Genentech"). In addition, the Company
has four proprietary antibody product candidates that are under development
internally, two of which are in human clinical trials. In certain instances, the
Company intends to commercialize select products on its own in niche markets
such as graft versus host disease ("GVHD").
Abgenix believes that its XenoMouse technology offers the following
advantages: (i) producing antibodies with fully human protein sequences; (ii)
generating a diverse antibody response to essentially any disease target
appropriate for antibody therapy; (iii) generating high affinity antibodies
which do not require further engineering; (iv) enabling more efficient product
development; and (v) providing flexibility in choosing manufacturing processes.
The Company has established collaborative arrangements with Pfizer,
Schering-Plough and Genentech in order to generate fully human antibodies to
specific antigens in the fields of cancer, inflammation and growth factor
modulation and cardiovascular research, respectively. Pursuant to their
respective collaborative arrangements, Pfizer, Schering-Plough and Genentech are
obligated to make payments upon completion of certain research and may make
additional payments upon achievement of other milestones. In connection with its
collaborative arrangement, Pfizer also made an equity investment of
approximately $1.3 million in the Company. Abgenix also has a collaborative
arrangement with Cell Genesys, Inc. ("Cell Genesys") based on antibodies
generated with XenoMouse technology in the field of gene therapy. In addition,
Abgenix intends to form proprietary product collaborations with potential
pharmaceutical partners involving antibodies generated against antigen targets
sourced by the Company.
The Company's lead product candidate, ABX-CBL, is a proprietary in-licensed
antibody in Phase II clinical trials. ABX-CBL targets the CBL antigen which is
selectively expressed on activated immune cells. Abgenix believes that ABX-CBL
has the ability to reverse unwanted immune responses by selectively destroying
activated immune cells without adversely affecting the entire immune system. As
of March 1, 1998, ABX-CBL had been tested in 90 patients in various
transplant-related conditions including GVHD and organ transplant rejection.
Based in part on data from these initial clinical trials, the Company commenced
a multi-center confirmatory Phase II clinical study in GVHD in January 1998 and
anticipates completion of this trial in 1998. In addition, the Company has
applied its XenoMouse technology to develop a fully human antibody, ABX-RB2,
targeting the CBL antigen for potential use in organ transplant rejection and
autoimmune disorders, indications where chronic drug administration may be
required. ABX-RB2 is in preclinical development.
In April 1998, Abgenix initiated Phase I clinical trials in psoriasis with
ABX-IL8, a fully human antibody product candidate generated with XenoMouse
technology that binds with high affinity to interleukin-8 ("IL-8"). A number of
preclinical studies suggest that excess IL-8 may be associated with certain
inflammatory disorders. Additionally, Abgenix is in preclinical development with
ABX-EGF, a fully human antibody product candidate that has been shown in mouse
models to eradicate certain human tumors.
4
<PAGE> 6
THE OFFERING
Common Stock to be Offered by the
Company............................. 3,000,000 shares
Common Stock Outstanding after the
Offering............................ 11,137,512 shares(1)
Use of Proceeds..................... For research and development, including
the performance of preclinical and
clinical trials, cross-license and
settlement payment, working capital and
other general corporate purposes. See
"Use of Proceeds."
Proposed Nasdaq National Market
Symbol.............................. ABGX
SUMMARY FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
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THREE MONTHS
ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
----------------------------------------------- ------------------
1993 1994 1995 1996 1997 1997 1998
------ ------- ------- ------- -------- -------- -------
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STATEMENT OF OPERATIONS DATA(2):
Total revenues(2).......................... $6,600 $ 6,200 $ 6,200 $ 4,719 $ 1,954 $ 335 $ 891
Operating expenses:
Research and development................. 4,629 7,921 11,879 9,433 11,405 2,078 5,366
General and administrative............... 1,019 1,955 2,603 2,565 3,525 1,004 918
Charge for cross-license and
settlement -- amount allocated from
Cell Genesys(3)........................ -- -- -- -- 11,250 11,250 --
Equity in losses from the Xenotech joint
venture (charge for cross-license and
settlement)(3)......................... -- -- -- -- 11,250 3,750 --
------ ------- ------- ------- -------- -------- -------
Total operating expenses............... 5,648 9,876 14,482 11,998 37,430 18,082 6,284
------ ------- ------- ------- -------- -------- -------
Operating income (loss).................... 952 (3,676) (8,282) (7,279) (35,476) (17,747) (5,393)
Interest income (expense), net............. -- -- -- 179 (404) 47 48
------ ------- ------- ------- -------- -------- -------
Net income (loss).......................... $ 952 $(3,676) $(8,282) $(7,100) $(35,880) $(17,700) $(5,345)
====== ======= ======= ======= ======== ======== =======
Pro forma net loss per share(4)............ $ (9.22) $ (0.67)
======== =======
Shares used in computing pro forma net loss
per share(4)............................. 3,894 7,953
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<TABLE>
<CAPTION>
MARCH 31, 1998
--------------------------------------
PRO PRO FORMA AS
ACTUAL FORMA(5) ADJUSTED(6)
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BALANCE SHEET DATA:
Cash, cash equivalents and short-term investments........... $ 13,340 $13,340 $ 39,530
Working capital............................................. 5,145 5,145 35,085
Total assets................................................ 20,197 20,197 46,387
Long-term debt, less current portion........................ 3,559 3,559 3,559
Redeemable convertible preferred stock...................... 35,125 -- --
Accumulated deficit......................................... (57,819) (57,819) (57,819)
Total stockholders' equity (net capital deficiency)......... (27,468) 7,657 37,597
</TABLE>
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(1) Based on the number of shares outstanding as of March 31, 1998. Excludes (i)
1,702,904 shares of Common Stock issuable upon exercise of options
outstanding as of March 31, 1998, with a weighted average exercise price of
$1.98 per share, (ii) 121,667 shares of Preferred Stock issuable upon
exercise of warrants outstanding as of March 31, 1998, with an exercise
price of $6.00 per share, (iii) 25,000 shares of Common Stock issuable
pursuant to the terms of a license agreement and (iv) an aggregate of
1,395,186 shares of Common Stock reserved for future issuance under the
Company's 1996 Incentive Stock Plan, 1998 Employee Stock Purchase Plan and
1998 Director Option Plan. See "Capitalization," "Management -- Stock
Plans," "Description of Capital Stock" and Note 7 of Notes to the Company's
Financial Statements.
(2) The statement of operations of the Company includes the revenues and
expenses of Abgenix as a business unit within Cell Genesys prior to July 15,
1996. During the years ended December 31, 1993, 1994, 1995 and 1996, the
Company's revenues were derived principally from Xenotech for the
development of XenoMouse technology, which was essentially completed in
1996.
(3) In the year ended December 31, 1997, the Company incurred an aggregate
non-recurring charge for cross-license and settlement of $22.5 million,
$15.0 million of which was a noncash allocation. The Company recorded the
initial settlement amount of $15.0 million in March 1997. The remaining $7.5
million was recorded in December 1997. See Note 6 of Notes to the Company's
Financial Statements.
(4) See Note 1 of Notes to the Company's Financial Statements for an explanation
of shares used in computing pro forma net loss per share.
(5) Pro forma information gives effect to the conversion, upon the closing of
this offering, of all outstanding shares of Preferred Stock into an
aggregate of 7,844,352 shares of Common Stock.
(6) Adjusted to give effect to the sale of the 3,000,000 shares of Common Stock
offered by the Company hereby at an assumed initial public offering price of
$11.00 per share (the midpoint of the range set forth on the front cover of
this Prospectus) and the application of the estimated net proceeds therefrom
after deducting estimated underwriting discounts and commissions and
offering expenses payable by the Company. See "Use of Proceeds" and
"Capitalization."
5
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RISK FACTORS
This Prospectus contains forward-looking statements based upon current
expectations that involve risks and uncertainties. When used in this Prospectus,
the words "anticipate," "believe," "estimate" and "expect" and similar
expressions as they relate to the Company or its management are intended to
identify such forward-looking statements. The Company's actual results could
differ materially from those anticipated in these forward-looking statements as
a result of certain factors, including those set forth in the following risk
factors and elsewhere in this Prospectus. An investment in the shares of Common
Stock offered in this Prospectus involves a high degree of risk. In addition to
the other information in this Prospectus, the following risk factors should be
considered carefully in evaluating the Company and its business before
purchasing shares of the Common Stock offered hereby.
UNCERTAINTY ASSOCIATED WITH XENOMOUSE TECHNOLOGY
The Company's XenoMouse technology is a new approach to the generation and
development of antibody therapeutic products. To date, the Company has not
commercialized any antibody products based on its XenoMouse technology. In
addition, the Company is not aware of any commercialized antibody therapeutic
product that has been generated or developed from any transgenic technologies.
Current antibody product candidates based on, utilizing or derived from
XenoMouse technology are at a very early stage of development. To date, the
Company has begun clinical trials with respect to only one such antibody product
candidate. While to date XenoMouse technology has been able to generate
antibodies against the antigens to which it had been exposed, there can be no
assurance that it will be able to do so with respect to all future antigens.
Failure of the Company's XenoMouse technology to generate antibody product
candidates that lead to the successful development and commercialization of
products would have a material adverse effect on the Company's business,
financial condition and results of operations. Although the Company believes
that its XenoMouse technology offers certain advantages, there can be no
assurance that these advantages will be realized or, if realized, that XenoMouse
technology will result in any meaningful benefits to current or potential
collaborative partners or patients. There can be no assurance that the Company's
XenoMouse technology will enable the Company or any of its collaborative
partners to identify, generate, develop or commercialize antibody therapeutic
products or product candidates in an efficient and timely manner, if at all. See
"Business -- The Abgenix Solution -- XenoMouse Technology."
EARLY STAGE OF DEVELOPMENT; HISTORY OF LOSSES AND UNCERTAINTY OF FUTURE
PROFITABILITY
The Company is at an early stage of development and must be evaluated in
light of the uncertainties and complexities present in an early stage
biopharmaceutical company. The product candidates under development by the
Company are in the research or preclinical development stage or are in the early
stage of clinical trials. Significant investment in additional research and
development, preclinical and clinical testing, regulatory and sales and
marketing activities will be necessary in order for the Company to commercialize
its current and any future product candidates. There can be no assurance that
the Company's product candidates under development will be successfully
developed or that such product candidates, if successfully developed, will
generate sufficient or sustainable revenues to enable the Company to be
profitable.
Since inception, the Company has funded its research and development
activities primarily through contributions from Cell Genesys, revenues from
collaborative arrangements, private placements of preferred stock, equipment
leaseline financings and loan facilities. The Company has incurred net losses in
each of the last three years of operation, including net losses of approximately
$8.3 million, $7.1 million, $35.9 million and $5.3 million in 1995, 1996, 1997
and the three months ended March 31, 1998, respectively, and as of March 31,
1998, had an accumulated deficit of approximately $57.8 million. The Company's
losses have resulted principally from costs incurred in performing research and
development to develop its XenoMouse technology and subsequent antibody product
candidates, from the non-recurring cross-license and settlement charge and from
general and administrative costs associated with the Company's operations. The
Company expects to incur
6
<PAGE> 8
additional operating losses until at least the year 2000 as a result of
increases in its expenditures for research and product development, including
costs associated with conducting preclinical testing and clinical trials. The
Company expects that the amount of such losses will fluctuate significantly from
quarter to quarter as a result of increases or decreases in the Company's
research and development efforts, the execution or termination of collaborative
arrangements, or the initiation, success or failure of clinical trials.
The Company expects that substantially all of its revenues for the
foreseeable future will result from payments under collaborative arrangements,
including fees upon signing, reimbursement for research and development and
milestone payments. To date, all of the Company's revenues have resulted
primarily from research and development funding and milestone payments and may
not be indicative of the Company's future performance or of the ability of the
Company to continue to achieve such milestones. The Company's ability to
generate revenue or achieve profitability depends in part on its ability to
enter into further collaborative or licensing arrangements, successfully
complete preclinical or clinical trials, obtain regulatory approval for its
product candidates and develop the capacity, either alone or through third
parties, to manufacture, market and sell its products. Payments under the
Company's existing and any future collaborative arrangements will be subject to
significant fluctuation in both timing and amount and therefore the Company's
revenues and results of operations for any period may not be comparable to the
revenues or results of operations for any other period. There can be no
assurance that the Company will enter into further collaborative arrangements,
successfully complete preclinical or clinical trials, obtain required regulatory
approvals, or successfully develop, manufacture and market product candidates.
Failure to do so will have a material adverse effect on the Company's business,
financial condition, and results of operations. There can be no assurance that
the Company will ever achieve product revenues or profitability. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Business -- Product Development Programs."
NO ASSURANCE OF SUCCESSFUL PRODUCT DEVELOPMENT
All of the Company's product candidates are in the early stages of research
and development and only ABX-CBL and ABX-IL8 have been used in human clinical
trials. All of the Company's product candidates will require significant
additional preclinical or clinical testing prior to obtaining regulatory
approval for commercial use. In addition, the Company must file a product
approval application with the United States Food and Drug Administration (the
"FDA") prior to commercialization of any of the Company's products. The Company
currently does not expect to file a product approval application with the FDA or
corresponding regulatory filings in Europe for its product candidates at least
prior to 1999 and does not expect to have any products commercially available at
least prior to 2000, if at all.
In addition, the Company's strategy includes building a large and
diversified product portfolio, including a mix of out-licensed and internally
developed product candidates. There can be no assurance that the Company will be
able to implement this strategy or that current or future product candidates
will ever result in viable commercial products. In order to develop a single
product, the Company must develop and test multiple product candidates.
Development of the Company's current and any future product candidates are
subject to the risks of failure inherent in the development of new
pharmaceutical products and products based on new technologies. These risks
include the possibility that the Company will experience delays in development,
testing or marketing, that such development, testing or marketing will result in
unplanned expenditures or in expenditures above those anticipated by the
Company, that the Company's products will not be proven safe or effective, that
the Company's product candidates will not be easy to use or cost-effective, that
third parties will develop and market superior or equivalent products, that any
or all of the Company's product candidates will fail to receive any necessary
regulatory approvals, that such product candidates will be difficult or
uneconomical to manufacture on a commercial scale, that proprietary rights of
third parties will preclude the Company or its collaborative partners from
marketing such products and that the Company's products will not achieve market
acceptance. As a result of these risks, there can be no
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assurance that research and development efforts conducted by the Company or its
collaborative partners will result in any commercially viable products. If a
significant portion of the Company's development programs are not successfully
completed, required regulatory approvals are not obtained, or any approved
products are not commercially successful, there will be a material adverse
effect on Company's business, financial condition and results of operations. See
"Business -- Product Development Programs."
DEPENDENCE ON COLLABORATIVE ARRANGEMENTS
The Company's strategy for the development and commercialization of
antibody therapeutic products depends, in large part, upon the formation and
maintenance of collaborative and licensing arrangements with several corporate
partners. In order to successfully develop and commercialize new products and
product candidates, the Company must enter into such collaborations, including
collaborations with pharmaceutical and biotechnology companies, academic
institutions and other entities to access proprietary antigens, to fund and
complete its research and development activities, preclinical and clinical
testing and manufacturing, to seek and obtain regulatory approvals and to
achieve successful commercialization of existing and future product candidates.
The Company has recently entered into collaborative arrangements with Pfizer,
Schering-Plough and Genentech to generate fully human antibodies to specific
antigens in the fields of cancer, inflammation and growth factor modulation,
respectively. To date, only a limited number of antibody product candidates have
been generated pursuant to such collaborations, and there can be no assurance
that any such collaboration will be successful. There can also be no assurance
that the Company will be able to establish additional collaborative or licensing
arrangements, that any such arrangements or licenses will be on terms favorable
to the Company, that any such collaborative arrangements or licenses will result
in commercially successful products or that the current or any future
collaborative or licensing arrangements will ultimately be successful. Failure
of the Company to maintain its significant collaborative arrangements or enter
into additional collaborative arrangements would have a material adverse effect
on the Company's business, financial condition and results of operations.
The Company's dependence on collaborative and licensing arrangements with
third parties subjects it to a number of risks. Agreements with collaborative
partners typically allow such partners significant discretion in electing
whether to pursue any of the planned activities. The Company cannot control the
amount and timing of resources its collaborative partners may devote to the
product candidates, and there can be no assurance that such partners will
perform their obligations as expected. Business combinations or significant
changes in a corporate partner's business strategy may adversely affect such
partners ability to complete its obligations under the arrangements. If any
collaborative partner were to terminate or breach its agreement with the
Company, or otherwise fail to complete its obligations in a timely manner, such
conduct could have a material adverse effect on the Company's business,
financial condition and results of operations. To the extent that the Company is
not able to establish further collaborative arrangements or that any or all of
the Company's existing collaborative arrangements are terminated, the Company
would be required to seek new collaborative arrangements or to undertake product
development and commercialization at its own expense, which could significantly
increase the Company's capital requirements, place additional strain on its
human resource requirements and limit the number of product candidates which the
Company would be able to develop and commercialize. In addition, there can be no
assurance that existing and future collaborative partners will not pursue
alternative technologies or develop alternative products either on their own or
in collaboration with others, including the Company's competitors. There can
also be no assurance that disputes will not arise in the future with respect to
the ownership of rights to any technology or products developed with any future
collaborative partner. Lengthy negotiations with potential new collaborative
partners or disagreements between established collaborative partners and the
Company could lead to delays or termination in the research, development or
commercialization of certain product candidates or result in litigation or
arbitration, which would be time consuming and expensive. Failure by any
collaborative partner to develop or commercialize successfully any product
candidate to which it has obtained rights from the Company or the decision by a
collaborative partner
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to pursue alternative technologies or develop alternative products, either on
their own or in collaboration with others, could have a material adverse effect
on the Company's business, financial condition and results of operations. The
Company has an option to obtain licenses from Xenotech to commercialize antibody
products generated by XenoMouse technology. Such option is for a certain number
of targets each year. There can be no assurance that in any year the Company
will exercise its rights for the full number of targets subject to such option
or that such option will not limit the Company's ability to fully realize the
commercial potential of its XenoMouse technology. In addition, disputes with
Japan Tobacco could result in the loss of the right to commercialize a product
candidate by either party. See "Business--Collaborative Arrangements."
UNCERTAINTIES RELATED TO CLINICAL TRIALS
Before obtaining regulatory approvals for the commercial sale of any
products, the Company must demonstrate through preclinical testing and clinical
trials that its product candidates are safe and effective for use in the target
disease indication. With the exception of the recently initiated multi-center
confirmatory Phase II trial in GVHD, clinical trials of the Company's ABX-CBL
product candidate were conducted by third parties prior to the Company obtaining
license rights to technologies related to this product candidate. As of March 1,
1998, ABX-CBL had only been administered to a total of 90 patients in GVHD and
organ transplant rejection indications, and Phase I clinical trials for ABX-IL8
in psoriasis commenced in April 1998. As a result, patient follow up has been
limited and clinical data obtained thus far have been insufficient to
demonstrate safety and efficacy under applicable FDA guidelines to support an
application for regulatory approval. In addition, the results from preclinical
testing and early clinical trials may not be predictive of results obtained in
later clinical trials. A number of new drugs and biologics have shown promising
results, even in later stage clinical trials, but subsequently failed to
establish sufficient safety and efficacy data to obtain necessary regulatory
approvals in advanced clinical trials. There can be no assurance that clinical
trials conducted by the Company or by third parties on behalf of the Company
will demonstrate sufficient safety and efficacy to obtain the requisite
regulatory approvals for ABX-CBL or ABX-IL8. In addition, the Company's other
two product candidates are still in preclinical development. The Company has not
submitted investigational new drug applications ("IND") nor begun clinical
trials for these two product candidates. No assurance can be given that any of
the Company's preclinical or clinical development programs will be successfully
completed, that any further IND will be filed or become effective, that
additional clinical trials will be allowed by the FDA or other regulatory
authorities, or that clinical trials will commence as planned.
The commencement and rate of completion of clinical trials conducted by the
Company may be delayed by many factors, including inability to manufacture
sufficient quantities of materials used for clinical trials, slower than
expected rate of patient recruitment, inability to adequately follow patients
after treatment, unforeseen safety issues or any other adverse event reported
during the clinical trials. The Company has limited experience in conducting or
managing clinical trials and relies, and will continue to rely, on third parties
to assist the Company in managing and monitoring clinical trials. Dependence on
such third parties may result in delays in completing, or failure to complete,
such trials if such third parties fail to perform under their agreements with
the Company. Completion of trials may take several years or more, and the length
of time generally varies substantially with the type, complexity, novelty and
intended use of the product candidate. Data obtained from preclinical and
clinical activities are susceptible to varying interpretations, which could
delay, limit or prevent regulatory approval. In addition, delays or rejections
by regulatory authorities may be encountered as a result of many factors,
including changes in regulatory policy during the period of product development.
There can be no assurance that the Company will be permitted by regulatory
authorities to undertake any additional clinical trials for its potential
products or, if such additional trials are conducted, that any of the Company's
product candidates will prove to be safe and efficacious or will receive
regulatory approvals. In addition, the Company's clinical trials are often
conducted with patients who have failed conventional treatments and, in the case
of GVHD, patients are often in the most advanced stages of the disease. During
the course of treatment, these patients can die or suffer
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adverse medical effects for reasons that may not be related to the
pharmaceutical agent being tested but which can nevertheless adversely affect
the interpretation of clinical trial results. Failure of the Company's product
candidates to demonstrate safety and efficacy in clinical trials could result in
delays in developing other product candidates and conducting related preclinical
testing and clinical trials, as well as a potential need for additional
financing, any or all of which would have a material adverse effect on the
Company's business, financial condition and results of operations. Furthermore,
any delays in, or termination of, the Company's clinical trials would also have
a material adverse effect on the Company's business, financial condition and
results of operations. There can be no assurance that the Company will be
permitted by regulatory authorities to undertake any additional clinical trials
for its product candidates or, if such additional trials are conducted, that any
of the Company's product candidates will prove to be safe and efficacious or
will receive regulatory approvals. See "Business -- Product Development
Programs" and "-- Government Regulation."
UNCERTAINTY OF PATENT POSITION AND DEPENDENCE ON PROPRIETARY RIGHTS
The Company's success depends in part on its ability to obtain patents,
protect trade secrets, operate without infringing upon the proprietary rights of
others and prevent others from infringing on the proprietary rights of the
Company. The Company's policy is to seek to protect its proprietary position by,
among other methods, filing United States and foreign patent applications
related to its proprietary technology, inventions and improvements that are
important to the development of its business. Proprietary rights relating to the
Company's technologies will be protected from unauthorized use by third parties
only to the extent that they are covered by valid and enforceable patents or are
effectively maintained as trade secrets. There can be no assurance that any
patents owned by, or licensed to, the Company will afford protection against
competitors or that any pending patent applications now or hereafter filed by,
or licensed to, the Company will result in patents being issued. In addition,
the laws of certain foreign countries do not protect the Company's intellectual
property rights to the same extent as do the laws of the United States. The
patent position of biopharmaceutical companies involves complex legal and
factual questions and, therefore, their enforceability cannot be predicted with
certainty. There can be no assurance that any of the Company's patents or patent
applications, if issued, will not be challenged, invalidated or circumvented, or
that the rights granted thereunder will provide proprietary protection or
competitive advantages to the Company against competitors with similar
technology. Furthermore, there can be no assurance that others will not
independently develop similar technologies or duplicate any technology developed
by the Company.
While the Company has multiple patent applications pending in the United
States, to date, the Company has no United States patents relating to XenoMouse
technology. One issued European Patent owned by the Company relating to
XenoMouse technology is currently undergoing opposition proceedings within the
European Patent Office, and no assurance can be given regarding the outcome of
this opposition. The Company intends to continue to file patent applications as
appropriate for patents covering both its product candidates and processes.
There can be no assurance that patents will issue from any of these
applications, that any patent will issue on technology arising from additional
research or that patents that may issue from such applications will be
sufficient to protect the Company's technologies.
Pursuant to the cross-license and settlement agreement with GenPharm
International, Inc., a subsidiary of Medarex, Inc., ("GenPharm"), the Company
entered into a cross-license agreement with Cell Genesys, Xenotech, Japan
Tobacco and GenPharm, whereby the Company has licensed on a non-exclusive basis
certain patents, patent applications, third party licenses, and inventions
pertaining to the development and use of certain transgenic rodents including
mice that produce fully human antibodies that are integral to the Company's
products and business. The Company uses its XenoMouse technology to generate
fully human antibody products and has not licensed the use of, and does not use,
any transgenic rodents developed or used by GenPharm. Breach of the
cross-license agreement would have a material adverse effect on the Company's
business, financial condition and results of operations.
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Research has been conducted for many years in the antibody field. This has
resulted in a substantial number of issued patents and an even larger number of
patent applications. Patent applications in the United States are, in most
cases, maintained in secrecy until patents issue, and publication of discoveries
in the scientific or patent literature frequently occurs substantially later
than the date on which the underlying discoveries were made. The commercial
success of the Company depends significantly on its ability to operate without
infringing the patents and other proprietary rights of third parties. There can
be no assurance that the Company's technologies do not and will not infringe the
patents or violate other proprietary rights of third parties. In the event of
such infringement or violation, the Company and its corporate partners may be
enjoined from pursuing development or commercialization of their products. Such
action would have a material adverse affect on the Company's business, financial
condition and results of operations.
The biotechnology and pharmaceutical industries have been characterized by
extensive litigation regarding patents and other intellectual property rights,
and the Company, together with Cell Genesys, Xenotech and Japan Tobacco,
recently settled litigation with GenPharm regarding certain patents and other
intellectual property rights. See "Business -- Intellectual Property -- Patent
Cross-License and Settlement Agreement with GenPharm." The defense and
prosecution of intellectual property suits, United States Patent and Trademark
Office ("USPTO") interference proceedings and related legal and administrative
proceedings in the United States and internationally involve complex legal and
factual questions. As a result, such proceedings are costly and time-consuming
to pursue and their outcome is uncertain. Litigation may be necessary to enforce
patents issued or licensed to the Company, to protect trade secrets or know-how
owned by or licensed by the Company or to determine the enforceability, scope
and validity of the proprietary rights of others. Any litigation, interference
or other administrative proceedings will result in substantial expense to the
Company and significant diversion of effort and resources by the Company's
technical and management personnel. An adverse determination in such proceedings
to which the Company may become a party could subject the Company to significant
liabilities to third parties or require the Company to seek licenses which may
not be available from third parties or prevent the Company from selling its
products in certain markets, if at all. Although patent and intellectual
property disputes are often settled through licensing or similar arrangements,
costs associated with such arrangements may be substantial and could include
ongoing royalties. Furthermore, there can be no assurance that the necessary
licenses would be available to the Company on satisfactory terms, if at all.
Adverse determinations in a judicial or administrative proceeding or failure to
obtain necessary licenses could restrict or prevent the Company from
manufacturing and selling its products, if any, which would have a material
adverse effect on the Company's business, financial condition and results of
operations.
In addition to patents, the Company relies on trade secrets and proprietary
know-how, which it seeks to protect, in part, through confidentiality and
proprietary information agreements. There can be no assurance that such
confidentiality or proprietary information agreements will provide meaningful
protection or adequate remedies for the Company's technology in the event of
unauthorized use or disclosure of such information, that the parties to such
agreements will not breach such agreements or that the Company's trade secrets
will not otherwise become known to or be independently developed by competitors.
See "Business -- Intellectual Property."
INTENSE COMPETITION; RAPID TECHNOLOGICAL CHANGE
The biotechnology and pharmaceutical industries are highly competitive and
subject to significant and rapid technological change. The Company is aware of
several pharmaceutical and biotechnology companies, which are actively engaged
in research and development in areas related to antibody therapy, that have
commenced clinical trials of antibody therapeutics products or have successfully
commercialized antibody products. Many of these companies are addressing
diseases and disease indications which are being targeted by the Company or its
collaborative partners. Certain of these competitors have specific expertise or
technology related to antibody development, such as Centocor, Inc., Protein
Design Labs, Inc., IDEC Pharmaceuticals Corporation, Cambridge Antibody
Technology
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Group, Inc. and GenPharm. Certain of the Company's competitors are developing or
testing product candidates that may be directly competitive with the Company's
product candidates. For example, the Company is aware that several companies,
including Genentech, Inc., have potential product candidates that may inhibit
the activity of IL-8. Furthermore, the Company is aware that ImClone Systems,
Inc. has a potential product candidate in clinical development that may inhibit
the activity of EGF. Many of these companies and institutions, either alone or
together with their corporate partners, have substantially greater financial
resources and larger research and development staffs than the Company. In
addition, many of these competitors, either alone or together with their
corporate partners, have significantly greater experience than the Company in
developing products, undertaking preclinical testing and human clinical trials,
obtaining FDA and other regulatory approvals of products and manufacturing and
marketing products. Accordingly, the Company's competitors may succeed in
obtaining patent protection, receiving FDA approval or commercializing products
more rapidly than the Company. If the Company commences commercial sales of
products, it will be competing against companies with greater marketing and
manufacturing capabilities, areas in which it has limited or no experience.
In addition to biotechnology and pharmaceutical companies, the Company
faces, and will continue to face, competition from academic institutions,
government agencies and research institutions. There are numerous competitors
working on products to treat each of the diseases for which the Company is
seeking to develop therapeutic products. In addition, any product candidate
successfully developed by the Company may compete with existing therapies that
have long histories of safe and effective use. Competition may also arise from
other drug development technologies and methods of preventing or reducing the
incidence of disease and new small molecule or other classes of therapeutic
agents. There can be no assurance that developments by others will not render
the Company's product candidates or technologies obsolete or noncompetitive. The
Company faces and will continue to face intense competition from other
companies, including Japan Tobacco, for collaborative arrangements with
pharmaceutical and biotechnology companies, for establishing relationships with
academic and research institutions, and for licenses to proprietary technology.
These competitors, either alone or with their corporate partners, may succeed in
developing technologies or products that are more effective than those of the
Company. The Company's collaborative partners may elect to develop other
antibody products which compete with the Company's products. See
"Business -- Competition."
SIGNIFICANT GOVERNMENT REGULATIONS; NO ASSURANCE OF REGULATORY APPROVALS
All new biopharmaceutical products, including the Company's product
candidates under development and anticipated future products, are subject to
extensive and rigorous regulation by the federal government, principally the FDA
under the Federal Food, Drug and Cosmetic Act (the "FD&C Act") and other laws
including the Public Health Service Act, and by state and local governments.
Such regulations govern, among other things, the development, testing,
manufacture, safety, efficacy, record keeping, labeling, storage, approval,
advertising, promotion, sale and distribution of such products. If
biopharmaceutical products are marketed abroad, they also are subject to
extensive regulation by foreign governments. To date, none of the Company's
product candidates has been approved for sale in the United States or any
foreign market. The regulatory review and approval process, which includes
preclinical studies and clinical trials of each product candidate, is lengthy,
expensive and uncertain. Securing FDA approvals requires the submission of
extensive preclinical and clinical data and supporting information to the FDA
for each indication to establish the product candidates' safety and efficacy.
The approval process takes many years, requires the expenditure of substantial
resources, involves post-marketing surveillance, and may involve ongoing
requirements for post-marketing studies. Delays in obtaining regulatory
approvals could adversely affect the successful commercialization of any drugs
developed by the Company or its collaborative partners, impose costly procedures
upon the Company's or its collaborative partners' activities, diminish any
competitive advantages that the Company or its collaborative partners may attain
and adversely affect the Company's receipt of revenues or royalties. There can
be no assurance that regulatory approval will be obtained for any therapeutic
product candidate developed by the Company or its collaborative partners.
Furthermore,
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regulatory approval may entail limitations on the indicated uses of a drug.
Product approvals, if granted, can be withdrawn for failure to comply with
ongoing regulatory requirements or upon the occurrence of unforeseen problems
following initial marketing.
Certain material changes to an approved product such as manufacturing
changes or additional labeling claims are subject to further FDA review and
approval. There can be no assurance that any approvals that are required, once
obtained, will not be withdrawn or that compliance with other regulatory
requirements can be maintained. Further, failure to comply with applicable FDA
and other regulatory requirements at any stage during the regulatory process can
result in sanctions being imposed on the Company or the manufacturers of its
products, including delays, warning letters, fines, product recalls or seizures,
injunctions, refusal of the FDA to review pending market approval applications
or supplements to approval applications, total or partial suspension of
production, civil penalties, withdrawals of previously approved marketing
applications and criminal prosecutions. The Company may rely on its
collaborative partners to file INDs and generally direct the regulatory approval
process. There can be no assurance that the Company's collaborative partners
will be able to conduct clinical testing or obtain necessary approvals from the
FDA or other regulatory authorities for any product candidates. Failure to
obtain required governmental approvals will delay or preclude the Company's
collaborative partners from marketing drugs or diagnostic products developed
through the Company's research or limit the commercial use of such product
candidates and could have a material adverse effect on the Company's business,
financial condition and results of operations.
Manufacturers of biopharmaceutical products also are required to comply
with the applicable FDA current good manufacturing practice ("cGMP")
regulations, which include requirements relating to quality control and quality
assurance as well as the corresponding maintenance of records and documentation.
Manufacturing facilities are subject to inspection by the FDA, including
unannounced inspection, and must be approved before they can be used in
commercial manufacturing of the Company's products. There can be no assurance
that the Company or its suppliers will be able to comply with the applicable
cGMP requirements and other FDA regulatory requirements. Such failure would have
a material adverse effect on the Company's business, financial condition and
results of operations. See "Business -- Government Regulation."
NO ASSURANCE OF MARKET ACCEPTANCE
There can be no assurance that the Company's product candidates will gain
any significant degree of market acceptance among physicians, patients,
healthcare payors and the medical community in general even if clinical trials
demonstrate safety and efficacy and necessary regulatory and reimbursement
approvals are obtained. The degree of market acceptance of any product
candidates developed by the Company will depend on a number of factors,
including the establishment and demonstration of the clinical efficacy and
safety as well as cost-effectiveness of the product candidates, their potential
advantage over alternative treatment methods and reimbursement policies of
government and third-party payors. Physicians will not recommend therapies using
the Company's products until such time, if at all, as clinical data or other
factors demonstrate the efficacy of such procedures as compared to conventional
drug and other treatments. Even if the clinical efficacy of therapies using the
Company's products were established, physicians may elect not to recommend the
therapies for any number of other reasons. The Company's product candidates, if
successfully developed, will compete with a number of alternative drugs and
therapies manufactured and marketed by major pharmaceutical and other
biotechnology companies, and possibly new products currently under development
by such companies and others. There can be no assurance that physicians,
patients, third-party payors or the medical community in general will accept and
utilize any product candidates that may be developed by the Company or its
collaborative partners. Failure of the Company's products to achieve significant
market acceptance would have a material adverse effect on the Company's
business, financial condition and results of operations. See
"Business -- Product Development Programs," "-- Competition," and
"-- Pharmaceutical Pricing and Reimbursement."
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LIMITED MANUFACTURING EXPERIENCE
The Company currently has limited experience in manufacturing its product
candidates and lacks the resources or capability to manufacture any of its
products on a commercial scale. While the Company currently manufactures limited
quantities of antibody products for preclinical testing, the Company relies on
contract manufacturers to produce ABX-CBL and ABX-IL8. With respect to products
other than ABX-CBL and ABX-IL8, the Company will either be responsible for
manufacturing or contract out manufacturing to third parties.
The Company's contract manufacturers have limited experience in
manufacturing ABX-CBL and ABX-IL8 in quantities sufficient for conducting
clinical trials. Contract manufacturers often encounter difficulties in scaling
up production, including problems involving production yields, quality control
and quality assurance and shortage of qualified personnel. Furthermore, there
are only a limited number of other third-party contract manufacturers who have
the ability and capacity to produce the Company's product candidates. Failure by
any contract manufacturer to deliver the required quantities of the Company's
products candidates for either clinical or commercial use on a timely basis and
at commercially reasonable prices and failure by the Company to find a
replacement manufacturer would have a material adverse affect on the Company's
business, financial condition and results of operations.
In addition, the Company and its third party manufacturers are required to
register their manufacturing facilities with the FDA and foreign regulatory
authorities. The facilities will then be subject to inspections confirming
compliance with cGMP established by the FDA or corresponding foreign
regulations. Failure to maintain compliance with the cGMP requirements would
materially adversely effect the Company's business, financial condition and
results of operations. See "Business -- Manufacturing."
NO MARKETING AND SALES EXPERIENCE
The Company has no experience in marketing or selling pharmaceutical
products and currently does not have a marketing, sales or distribution
capability. The Company intends to enter into arrangements with third parties to
market and sell most of its products. For select products, the Company may
establish an internal marketing and sales force. There can be no assurance that
the Company will be able to enter into marketing and sales arrangements with
others on acceptable terms, if at all. To the extent that the Company enters
into marketing and sales arrangements with other companies, any revenues to be
received by the Company will be dependent on the efforts of others. There can be
no assurance that such efforts will be successful. If the Company is unable to
enter into such third party arrangements, then the Company must develop a
marketing and sales force, which may be substantial in size, in order to achieve
commercial success for any product candidate approved by the FDA. There can be
no assurance that the Company will successfully develop such experience or have
sufficient resources to do so. If the Company develops its own marketing and
sales capabilities, it will compete with other companies that have experienced
and well-funded marketing and sales operations. The Company's failure to
establish successful marketing and sales capabilities or to enter into
successful marketing arrangements with third parties would have a material
adverse effect on the Company's business, financial condition and results of
operations.
DEPENDENCE ON KEY PERSONNEL; NEED TO ATTRACT AND RETAIN KEY EMPLOYEES AND
CONSULTANTS
The Company is highly dependent on the principal members of its scientific
and management staff. The loss of any of these persons could have a material
adverse effect on the Company's business, financial condition and results of
operations. In order to pursue its product development, marketing and
commercialization plans, the Company will be required to hire additional
qualified scientific personnel to perform research and development, as well as
personnel with expertise in clinical testing, government regulation,
manufacturing and marketing. Attracting and retaining qualified personnel will
be critical to the Company's success. There can be no assurance that the Company
will be able to attract and retain personnel on acceptable terms given the
competition for such personnel among
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biotechnology, pharmaceutical and healthcare companies, universities and
non-profit research institutions. In addition, the Company relies on members of
its Scientific and Medical Advisory Boards and other consultants to assist the
Company in formulating its research and development strategy. All of the
Company's consultants and the members of the Company's Scientific and Medical
Advisory Boards are employed by entities other than the Company, and may have
commitments to, or advisory or consulting agreements with, other entities that
may limit their availability to the Company. The loss of services of any of
these personnel could impede the achievement of the Company's development
objectives and could have a material adverse effect on the Company's business,
financial condition and results of operations. See "Business -- Scientific and
Medical Advisory Boards."
SIGNIFICANT INFLUENCE BY CELL GENESYS, INC.
After the completion of this offering, Cell Genesys will beneficially own
40.3% of the outstanding capital stock. As a result, Cell Genesys will have
significant influence over all matters requiring the approval of the Company's
stockholders, including the election of the Company's Board of Directors and
changes in control of the Company. Cell Genesys and the Company have entered
into a governance agreement, as amended (the "Governance Agreement"), which
provides that so long as Cell Genesys or a group to which it belongs owns (i) a
majority of the outstanding voting stock of the Company, Cell Genesys or the
group shall have the right to nominate four out of the seven directors of the
Company, (ii) less than a majority but greater than 25% of the outstanding
voting stock of the Company, then Cell Genesys or such group shall have the
right to nominate three out of the seven directors of the Company, or (iii) less
than 25% but greater than 15% of the outstanding voting stock of the Company,
then Cell Genesys or such group shall have the right to nominate one out of the
seven directors of the Company. The Governance Agreement also provides that Cell
Genesys and each officer and director of the Company who owns voting stock shall
agree to vote for the persons nominated as set forth above. There can be no
assurance that the Company will not be adversely impacted by the significant
influence which Cell Genesys will have with respect to matters affecting the
Company. See "Certain Transactions" and "Management -- Board Composition."
CONTROL BY DIRECTORS, EXECUTIVE OFFICERS, PRINCIPAL STOCKHOLDERS AND AFFILIATED
ENTITIES
The Company's directors, executive officers, principal stockholders and
affiliated entities will, in the aggregate, beneficially own approximately 51.0%
of the Company's outstanding Common Stock following the completion of this
offering. These stockholders, if acting together, would be able to control
substantially all matters requiring approval by the stockholders of the Company,
including the election of directors and the approval of mergers or other
business combination transactions. There can be no assurance that the Company
will not be adversely impacted by the control which such stockholders will have
with respect to matters affecting the Company. See "Principal Stockholders."
FUTURE CAPITAL REQUIREMENTS
The Company plans to continue to expend substantial resources for the
expansion of research and development, including costs associated with
conducting preclinical testing and clinical trials. The Company may be required
to expend greater-than-anticipated funds if unforeseen difficulties arise in the
course of completing required additional development of product candidates,
performing preclinical testing and clinical trials of such product candidates,
obtaining necessary regulatory approvals or other aspects of the Company's
business. The Company's future liquidity and capital requirements will depend on
many factors, including continued scientific progress in its research and
development programs, the size and complexity of these programs, the scope and
results of preclinical testing and clinical trials, the time and expense
involved in obtaining regulatory approvals, if any, competing technological and
market developments, the establishment of further collaborative arrangements, if
any, the time and expense of filing and prosecuting patent applications and
enforcing patent claims, the cost of establishing manufacturing capabilities,
conducting commercialization activities and arrangements, product in-licensing
and other factors not within the Company's control. Although the
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Company believes that the proceeds from this offering, together with the
Company's current cash balances, cash equivalents, short-term investments and
cash generated from collaborative arrangements will be sufficient to meet the
Company's operating and capital requirements for at least the next two years,
there can be no assurance that the Company will not require additional financing
within this timeframe. The Company may be required to raise additional funds
through public or private financing, collaborative relationships or other
arrangements. There can be no assurance that such additional funding, if needed,
will be available on terms attractive to the Company, if at all. Furthermore,
any additional equity financing may be dilutive to stockholders, and debt
financing, if available, may involve restrictive covenants. Collaborative
arrangements, if necessary to raise additional funds, may require the Company to
relinquish its rights to certain of its technologies, products or marketing
territories. The failure of the Company to raise capital when needed could have
a material adverse effect on the Company's business, financial condition and
results of operations.
UNCERTAINTY RELATING TO REIMBURSEMENT; UNCERTAINTY RELATING TO HEALTHCARE REFORM
In both domestic and foreign markets, sales of the Company's potential
products will depend in part upon the availability of reimbursement from
third-party payors, such as government health administration authorities,
managed care providers, private health insurers and other organizations. These
third-party payors are increasingly challenging the price and examining the cost
effectiveness of medical products and services. In addition, significant
uncertainty exists as to the reimbursement status of newly approved healthcare
products. The Company may need to conduct post-marketing studies in order to
demonstrate the cost-effectiveness of its products. Such studies may require
significant amount of resources to be provided by the Company. There can be no
assurance that the Company's product candidates will be considered cost
effective or that adequate third-party reimbursement will be available to enable
the Company to maintain price levels sufficient to realize an appropriate return
on its investment in product development. Both federal and state governments in
the United States and foreign governments continue to propose and pass
legislation designed to reduce the cost of healthcare. Accordingly, legislation
and regulations affecting the pricing of pharmaceuticals may change before the
Company's proposed products are approved for marketing. Adoption of such
legislation could further limit reimbursement for pharmaceuticals. If adequate
coverage and reimbursement rates are not provided by the government and
third-party payors for the Company's potential products, the market acceptance
of these products could be adversely affected, which would have a material
adverse effect on the Company's business, financial condition and results of
operations. See "Business -- Pharmaceutical Pricing and Reimbursement."
POTENTIAL PRODUCT LIABILITY EXPOSURE AND LIMITED INSURANCE COVERAGE
The use of any of the Company's product candidates in clinical trials, and
the sale of any approved products, may expose the Company to liability claims
resulting from such use or sale of its products. These claims might be made
directly by consumers, healthcare providers or by pharmaceutical companies or
others selling such products. There can be no assurance that the Company will
not experience financial losses in the future due to product liability claims.
Abgenix has obtained limited product liability insurance coverage for its
clinical trials in the amount of $5.0 million per occurrence and $5.0 million in
the aggregate. The Company intends to expand its insurance coverage to include
the sale of commercial products if marketing approval is obtained for product
candidates in development. However, insurance coverage is becoming increasingly
expensive and no assurance can be given that the Company will be able to
maintain insurance coverage at a reasonable cost or in sufficient amounts to
protect the Company against losses. A successful product liability claim or
series of claims brought against the Company for uninsured liabilities or in
excess of insured liabilities could have a material adverse effect on its
business, financial condition and results of operations.
16
<PAGE> 18
HAZARDOUS AND RADIOACTIVE MATERIALS; ENVIRONMENTAL MATTERS
The Company's research and development processes involve the controlled use
of hazardous and radioactive materials, chemicals and waste products. The
Company is subject to federal, state and local laws and regulations governing
the use, manufacture, storage, handling and disposal of such materials and waste
products. The risk of accidental contamination or injury from these materials
and waste products cannot be completely eliminated and the Company does not
expect to make material capital expenditures for environmental control
facilities in the near-term. There can be no assurance that the Company will not
be required to incur significant costs to comply with environmental laws and
regulations in the future, or that the operations, business or assets of the
Company will not be materially adversely affected by the costs of compliance
with current or future environmental laws or regulations.
NO PRIOR PUBLIC MARKET FOR COMMON STOCK
Prior to this offering, there has been no public market for the Company's
Common Stock, and there can be no assurance that a regular trading market will
develop and continue after this offering or that the market price of the Common
Stock will not decline below the initial public offering price. The initial
public offering price will be determined through negotiations between the
Company and the representatives of the Underwriters and may not be indicative of
the market price of the Common Stock following this offering. Among the factors
considered in such negotiations are prevailing market conditions, certain
financial information of the Company, market valuations of other companies that
the Company and the representatives of the Underwriters believe to be comparable
to the Company, estimates of the business potential of the Company, the present
state of the Company's development and other factors deemed relevant. See
"Underwriting."
VOLATILITY OF COMMON STOCK PRICE
The market prices for securities of biotechnology and pharmaceutical
companies have historically been highly volatile, and the market has from time
to time experienced significant price and volume fluctuations that are unrelated
to the operating performance of particular companies. Factors such as
fluctuations in the Company's operating results, announcements of technological
innovations or new therapeutic products by the Company or others, clinical trial
results, developments concerning strategic alliance agreements, government
regulation, developments in patent or other proprietary rights, public concern
as to the safety of products developed by the Company or others, future sales of
substantial amounts of Common Stock by existing stockholders, comments by
securities analysts and general market conditions can have an adverse effect on
the market price of the Common Stock. In addition, the realization of any of the
risks described in these "Risk Factors" could have a dramatic and adverse impact
on market price of the Company's Common Stock.
BROAD MANAGEMENT DISCRETION OVER USE OF OFFERING PROCEEDS
Over the next 12 months, the Company intends to use approximately $15.0
million of the net proceeds of this offering for research and development,
including the performance of preclinical and clinical trials, and approximately
$3.75 million for the final cross-license and settlement payment reflected as a
short-term payable to related party on the Company's balance sheet as of March
31, 1998. The balance of the net proceeds will be used for working capital and
for other general purposes over the next 12 months and thereafter. As a
consequence, the Company's management will retain broad discretion in the
allocation of a significant portion of the net proceeds. There can be no
assurance that the net proceeds will be utilized in a manner that the
stockholders deem optimal or that the net proceeds can or will be invested to
yield a significant return upon the completion of this offering. The Company
intends to invest the net proceeds in short-term, interest-bearing, investment
grade securities. See "Use of Proceeds."
17
<PAGE> 19
SHARES ELIGIBLE FOR FUTURE SALE
Sale of Common Stock (including shares issued upon the exercise of
outstanding options and warrants) in the public market after this offering could
materially adversely affect the market price of the Common Stock. Such sales
also might make it more difficult for the Company to sell equity securities or
equity-related securities in the future. Upon the completion of this offering,
based on the number of shares outstanding as of March 31, 1998, the Company will
have 11,137,512 shares of Common Stock outstanding assuming (i) the issuance by
the Company of shares of Common Stock offered hereby, (ii) no exercise of
outstanding options, warrants or other obligations to issue shares after March
31, 1998 and (iii) no exercise of the Underwriter's over-allotment option to
purchase 450,000 shares of Common Stock. Of these shares, the 3,000,000 shares
offered hereby will be freely tradable (unless held by affiliates of the
Company) and the remaining 8,137,512 shares will be restricted securities within
the meaning of the Securities Act of 1933, as amended (the "Securities Act").
Ninety days after the date of this Prospectus, 29,668 shares of Common Stock
will be freely tradable without restriction under the Securities Act (unless
held by affiliates of the Company). The Company's directors, executive officers
and certain stockholders who in the aggregate hold 7,990,025 of the shares of
Common Stock outstanding immediately prior to the completion of this offering
have entered into lock-up agreements under which they have agreed not to sell,
directly or indirectly, any shares owned by them for a period of 180 days after
the date of this Prospectus without the prior written consent of BancAmerica
Robertson Stephens. Upon expiration of the 180-day lock-up agreements, 4,680,159
shares of Common Stock will become eligible for public resale, subject to volume
limitations imposed by Rule 144. The remaining 3,356,020 shares held by existing
stockholders will become eligible for public resale at various times over a
period of less than one year following the completion of this offering, subject
to volume limitations. In addition, a director and a certain stockholder who in
the aggregate hold 71,665 of the shares of Common Stock outstanding immediately
prior to the completion of this offering have entered into lock-up agreements
substantially similar to the 180-day lock-up agreement described above except
that the term of the lock-up is 360 days. Upon expiration of the 360-day lock-up
agreements, all 71,655 of these shares will become eligible for public resale,
subject to volume limitations imposed by Rule 144. Also, as of March 31, 1998,
1,702,904 shares were subject to outstanding options. Approximately 1,592,752 of
these shares are subject to the 180-day lockup agreement described above. Of the
remaining 110,152 shares subject to outstanding options, approximately 44,101
were vested as of March 31, 1998. After the offering, the holders of 7,844,352
shares of Common Stock will be entitled to certain demand and piggyback rights
with respect to registration of such shares under the Securities Act. If such
holders, exercising the demand registration rights, causes a large number of
securities to be registered and sold in the public market, such shares could
have an adverse effect on the market price for the Company's Common Stock. If
the Company were to initiate a registration and include shares held by such
holders pursuant to the exercise of their piggyback registration rights, such
sales may have an adverse effect on the Company's ability to raise capital.
Additionally, 121,667 shares issuable pursuant to warrants and subject to the
180-day lock-up agreement will also be entitled to such registration rights. See
"Shares Eligible for Future Sale" and "Underwriting."
ANTI-TAKEOVER EFFECTS OF CERTAIN CHARTER AND BYLAW PROVISIONS AND DELAWARE LAW
Certain provisions of the Company's Certificate of Incorporation and Bylaws
may make it more difficult for a third party to acquire, or discourage a third
party from attempting to acquire, control of the Company. Such provisions could
limit the price that certain investors might be willing to pay in the future for
shares of the Company's Common Stock. Certain of these provisions allow the
Company to issue up to 5,000,000 shares of Preferred Stock without any vote or
further action by the stockholders, eliminate the right of stockholders to act
by written consent without a meeting, specify procedures for director
nominations by stockholders and submission of other proposals for consideration
at stockholder meetings. In addition, the Company is subject to certain
provisions of Delaware law, including Section 203, which prohibits a Delaware
corporation from engaging in any business combination with any interested
stockholder for a period of three years unless certain conditions are met. The
possible
18
<PAGE> 20
issuance of Preferred Stock, the elimination of the right of stockholders to act
by written consent without a meeting, the procedures required for director
nominations and stockholder proposals and Delaware law could have the effect of
delaying, deferring or preventing a change in control of the Company, including
without limitation, discouraging a proxy contest or making more difficult the
acquisition of a substantial block of the Company's Common Stock. These
provisions could also limit the price that investors might be willing to pay in
the future for shares of the Company's Common Stock. See "Description of Capital
Stock -- Preferred Stock" and "-- Certain Charter and Bylaw Provisions and
Delaware Law."
DILUTION; ABSENCE OF DIVIDENDS
The initial public offering price will be substantially higher than the
book value per share of Common Stock. Assuming an initial public offering price
of $11.00 per share, investors purchasing shares of Common Stock in this
offering will incur immediate, substantial dilution of $7.62 per share in the
net tangible book value of Common Stock. Additional dilution will occur upon the
exercise of outstanding options and warrants. See "Dilution." The Company has
never declared or paid any cash dividends and does not anticipate paying cash
dividends in the foreseeable future. See "Dividend Policy."
19
<PAGE> 21
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this Prospectus including without
limitation, statements containing the words "believes," "anticipates," "expects"
and words of similar import, constitute "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995 (the "Reform
Act"). The safe harbor provided for forward-looking statements by the Reform Act
does not apply to statements made in connection with an initial public offering.
However, such forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause the actual results, performance
or achievements of the Company, or industry results, to be materially different
from any future results, performance or achievements expressed or implied by
such forward-looking statements. Such factors include, among others: uncertainty
associated with XenoMouse technology; early stage of development; history of
losses and uncertainty of future profitability; no assurance of successful
product development; dependence on collaborative arrangements; uncertainties
related to clinical trials; uncertainty of patent position and dependence on
proprietary rights; intense competition and rapid technological change;
significant government regulations and no assurance of regulatory approvals; no
assurance of market acceptance; limited manufacturing experience; and other
factors referenced in this Prospectus. Certain of these factors are discussed in
more detail elsewhere in this Prospectus, including, without limitation, under
the captions "Summary," "Risk Factors," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business." Given these
uncertainties, prospective investors are cautioned not to place undue reliance
on such forward-looking statements. The Company disclaims any obligation to
update any such factors or to publicly announce the result of any revisions to
any of the forward-looking statements contained herein to reflect future events
or developments.
20
<PAGE> 22
USE OF PROCEEDS
The net proceeds to the Company from the sale of the 3,000,000 shares of
Common Stock offered by the Company hereby at an assumed initial public offering
price of $11.00 are estimated to be $29,940,000 ($34,543,500 if the
Underwriters' over-allotment option is exercised in full) after deducting
estimated underwriting discounts and commissions and offering expenses payable
by the Company.
Over the next 12 months, the Company intends to use approximately $15.0
million of the net proceeds of this offering for research and development,
including the performance of preclinical and clinical trials, and approximately
$3.75 million for the final cross-license and settlement payment reflected as a
short-term payable to related party on the Company's balance sheet as of March
31, 1998. The balance of the net proceeds will be used for working capital and
for other general corporate purposes over such 12 month period and thereafter.
The Company may also use a portion of the net proceeds to acquire or invest in
businesses, products or technologies that are complementary to those of the
Company. The amounts actually expended for each purpose and the timing of such
expenditures may vary significantly depending upon numerous factors, including
the results of clinical trials and preclinical testing, the achievement of
milestones under collaborative arrangements, the ability of the Company to
maintain existing and establish additional collaborative arrangements, the
timing and outcome of regulatory actions regarding the Company's potential
products, the costs and timing of expansion of marketing, sales and
manufacturing activities, the costs involved in preparing, filing, protecting,
maintaining and enforcing patent claims and other intellectual property rights
and competing technological and market developments. Pending the foregoing uses,
the Company intends to invest the net proceeds of this offering in short-term,
interest-bearing, investment grade securities.
DIVIDEND POLICY
The Company has never declared or paid cash dividends on its capital stock.
The Company currently expects to retain its future earnings, if any, for use in
the operation and expansion of its business and does not anticipate paying any
cash dividends in the foreseeable future. The Company's loan and security
agreement prohibits the payment of dividends without the consent of the lender.
THE COMPANY
The Company was incorporated on June 24, 1996 and subsequently on July 15,
1996 was organized pursuant to a Stock Purchase and Transfer Agreement between
the Company and Cell Genesys. The business and operations of Abgenix were
started in 1989 by Cell Genesys and prior to the organization of Abgenix were
conducted within Cell Genesys. In 1991, Cell Genesys and JT Immunotech USA,
Inc., the predecessor company to JT America, Inc. ("JT America") and a medical
subsidiary of Japan Tobacco, formed Xenotech, an equally owned joint venture, to
develop genetically modified strains of mice which can produce fully human
monoclonal antibodies (the "XenoMouse") and to commercialize products generated
from these mice. Upon the organization of Abgenix, Cell Genesys assigned
substantially all of its rights in Xenotech to Abgenix.
21
<PAGE> 23
CAPITALIZATION
The following table sets forth, as of March 31, 1998, (i) the actual
capitalization of the Company, (ii) the actual capitalization of the Company on
a pro forma basis to give effect to the conversion of all outstanding Preferred
Stock into Common Stock and the authorization of 5,000,000 shares of
undesignated Preferred Stock upon the closing of this offering, and (iii) the
pro forma capitalization as adjusted to give effect to the sale of the 3,000,000
shares of Common Stock offered by the Company hereby at an assumed initial
public offering price of $11.00 per share and the application of the estimated
net proceeds therefrom after deducting estimated underwriting discounts and
commissions and offering expenses payable by the Company. The capitalization
information set forth below should be read in conjunction with the Company's
Financial Statements and Notes thereto included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
MARCH 31, 1998
-------------------------------------------
PRO FORMA AS
ACTUAL PRO FORMA ADJUSTED
------------ ------------ ------------
(IN THOUSANDS)
<S> <C> <C> <C>
Short-term payable to related party........... $ 3,750 $ 3,750 $ --
============ ============ ============
Long-term debt, less current portion.......... $ 3,559 $ 3,559 $ 3,559
Redeemable convertible preferred stock,
$0.0001 par value; 20,000,000 shares
authorized, 7,844,352 issued and outstanding
actual; none authorized, issued and
outstanding pro forma and pro forma as
adjusted.................................... 35,125 -- --
Stockholders' equity (net capital deficiency):
Preferred stock, $0.0001 par value; none
authorized, issued and outstanding actual;
5,000,000 shares authorized, none issued and
outstanding pro forma and pro forma as
adjusted.................................... -- -- --
Common stock, $0.0001 par value; 50,000,000
shares authorized, 293,160 shares issued and
outstanding actual; 8,137,512 shares issued
and outstanding pro forma; 11,137,512 shares
issued and outstanding pro forma as
adjusted(1)................................. 397 35,522 65,462
Contributions from parent..................... 29,277 29,277 29,277
Additional paid-in capital.................... 2,296 2,296 2,296
Deferred compensation......................... (1,619) (1,619) (1,619)
Accumulated deficit........................... (57,819) (57,819) (57,819)
------------ ------------ ------------
Total stockholders' equity (net capital
deficiency).............................. (27,468) 7,657 37,597
------------ ------------ ------------
Total capitalization................ $ 11,216 $ 11,216 $ 41,156
============ ============ ============
</TABLE>
- ---------------
(1) Excludes (i) 1,702,904 shares of Common Stock issuable upon exercise of
options outstanding as of March 31, 1998, with a weighted average exercise
price of $1.98 per share, (ii) 121,667 shares of Preferred Stock issuable
upon exercise of warrants outstanding as of March 31, 1998, with an exercise
price of $6.00 per share, (iii) 25,000 shares of Common Stock issuable
pursuant to the terms of a license agreement and (iv) an aggregate of
1,395,186 shares of Common Stock reserved for future issuance under the
Company's 1996 Incentive Stock Plan, 1998 Employee Stock Purchase Plan and
1998 Director Option Plan. See "Management -- Stock Plans," "Description of
Capital Stock" and Note 7 of Notes to the Company's Financial Statements.
22
<PAGE> 24
DILUTION
The net tangible book value of the Company as of March 31, 1998, was
$7,657,000 or $0.94 per share of Common Stock. "Net tangible book value" per
share represents the amount of total tangible assets less total liabilities,
divided by the number of shares of Common Stock outstanding (assuming the
conversion of all then outstanding Preferred Stock into Common Stock). After
giving effect to the receipt of the net proceeds from the sale of the 3,000,000
shares of Common Stock offered by the Company hereby (after deducting estimated
underwriting discounts and commissions and offering expenses payable by the
Company) at an assumed initial public offering price of $11.00 per share, the
Company's net tangible book value as of March 31, 1998 would have been
$37,597,000 or $3.38 per share of Common Stock. This represents an immediate
increase in net tangible book value of $2.44 per share to existing stockholders
and an immediate dilution of $7.62 per share to new investors. The following
table illustrates this per share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price....................... $11.00
Net tangible book value as of March 31, 1998.............. $0.94
Increase in net tangible book value attributable to new
investors.............................................. 2.44
-----
Net tangible book value after offering...................... 3.38
------
Dilution to new investors................................... $ 7.62
======
</TABLE>
The following table sets forth the total consideration paid and the average
price per share paid by the existing stockholders and by new investors, before
deducting estimated underwriting discounts and commissions and offering expenses
payable by the Company at the assumed initial public offering price of $11.00
per share.
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
--------------------- ---------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- ------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
Existing stockholders........... 8,137,512 73.1% $37,061,382 52.9% $ 4.55
New investors................... 3,000,000 26.9 33,000,000 47.1 11.00
---------- ----- ----------- -----
Total...................... 11,137,512 100.0% $70,061,382 100.0%
========== ===== =========== =====
</TABLE>
The foregoing computations assume no exercise of stock options or warrants
after March 31, 1998. As of March 31, 1998, there were outstanding options to
purchase 1,702,904 shares of Common Stock, with a weighted average exercise
price of $1.98 per share, outstanding warrants to purchase 121,667 shares of
Preferred Stock, with an exercise price of $6.00 per share, and 25,000 shares of
Common Stock issuable pursuant to the terms of a license agreement. In addition,
1,395,186 shares of Common Stock are reserved for future issuance under the
Company's 1996 Incentive Stock Plan, 1998 Employee Stock Purchase Plan and 1998
Director Option Plan. To the extent that any shares available for issuance upon
exercise of outstanding options or warrants, or reserved for future issuance
under the terms of a license agreement or pursuant to the Company's stock plans
are issued, there will be further dilution to new public investors. See
"Management -- Stock Plans" and "Description of Capital Stock."
23
<PAGE> 25
SELECTED FINANCIAL DATA
The following selected financial data should be read in conjunction with
the Company's Financial Statements and the Notes thereto and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included elsewhere herein. The statement of operations data for the years ended
December 31, 1995, 1996 and 1997 and the balance sheet data as of December 31,
1996 and 1997 are derived from the Company's Financial Statements that have been
audited by Ernst & Young LLP, independent auditors, and are included elsewhere
in this Prospectus. The statement of operations data for the years ended
December 31, 1993 and 1994 are derived from the Company's Financial Statements
audited by Ernst & Young LLP that are not included herein. The statement of
operations data for the three months ended March 31, 1997 and 1998 and the
balance sheet data as of March 31, 1998 are derived from the Company's unaudited
financial statements also included elsewhere in this Prospectus which have been
prepared on the same basis as the audited Financial Statements and in the
opinion of management include all adjustments (consisting only of normal
recurring adjustments) necessary for a fair presentation of the financial
position and results of operations of the Company for the unaudited interim
periods. The statement of operations data for the interim periods are not
necessarily indicative of results that may be expected for any other interim
period or for the year as a whole.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
----------------------------------------------- -------------------
1993 1994 1995 1996 1997 1997 1998
------ ------- ------- ------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA(1):
Revenues:
Revenue under collaborative agreements from
related parties................................ $6,600 $ 6,200 $ 6,200 $ 4,719 $ 1,343 $ 335 $ 291
Contract revenue................................. -- -- -- -- 611 -- 600
------ ------- ------- ------- -------- -------- --------
Total revenues(1)......................... 6,600 6,200 6,200 4,719 1,954 335 891
Operating expenses:
Research and development......................... 4,629 7,921 11,879 9,433 11,405 2,078 5,366
General and administrative....................... 1,019 1,955 2,603 2,565 3,525 1,004 918
Charge for cross-license and settlement -- amount
allocated from Cell Genesys(2)................. -- -- -- -- 11,250 11,250 --
Equity in losses from the Xenotech joint venture
(charge for cross-license and settlement)(2)... -- -- -- -- 11,250 3,750 --
------ ------- ------- ------- -------- -------- --------
Total operating expenses.................. 5,648 9,876 14,482 11,998 37,430 18,082 6,284
------ ------- ------- ------- -------- -------- --------
Operating income (loss)............................ 952 (3,676) (8,282) (7,279) (35,476) (17,747) (5,393)
Interest income (expense), net..................... -- -- -- 179 (404) 47 48
------ ------- ------- ------- -------- -------- --------
Net income (loss).................................. $ 952 $(3,676) $(8,282) $(7,100) $(35,880) $(17,700) $ (5,345)
====== ======= ======= ======= ======== ======== ========
Pro forma net loss per share(3).................... $ (9.22) $ (0.67)
======== ========
Shares used in computing pro forma net loss per
share(3)......................................... 3,894 7,953
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
------------------- MARCH 31,
1996 1997 1998
-------- -------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Cash, cash equivalents and short-term investments........... $ 10,172 $ 15,321 $ 13,340
Working capital............................................. 5,564 6,637 5,145
Total assets................................................ 14,357 22,084 20,197
Long-term debt, less current portion........................ 1,757 3,979 3,559
Redeemable convertible preferred stock...................... 10,150 31,189 35,125
Accumulated deficit......................................... (16,594) (52,474) (57,819)
Total stockholders' equity (net capital deficiency)......... (2,316) (22,318) (27,468)
</TABLE>
- ---------------
(1) The statement of operations of the Company include the revenues and expenses
of Abgenix as a business unit within Cell Genesys prior to July 15, 1996.
During the years ended December 31, 1993, 1994, 1995 and 1996, the Company's
revenues were derived principally from Xenotech for the development of
XenoMouse technology, which was essentially completed in 1996.
(2) In 1997, the Company incurred a non-recurring charge for cross-license and
settlement of $22.5 million, $15.0 million of which was a noncash
allocation. The Company recorded the initial settlement amount of $15.0
million in March 1997. The remaining $7.5 million was recorded in December
1997. See Note 6 of Notes to the Company's Financial Statements.
(3) See Note 1 of Notes to the Company's Financial Statements for an explanation
of shares used in computing pro forma net loss per share.
24
<PAGE> 26
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following Management's Discussion and Analysis of Financial Condition
and Results of Operations contains forward-looking statements based upon current
expectations that involve risks and uncertainties. The Company's actual results
and the timing of certain events could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including
those set forth under "Risk Factors" and elsewhere in this Prospectus.
BASIS OF FINANCIAL STATEMENT PRESENTATION
The business and operations of Abgenix commenced in 1989 and were initially
conducted within Cell Genesys. On June 24, 1996, Abgenix was incorporated and
subsequently on July 15, 1996 was organized pursuant to a Stock Purchase and
Transfer Agreement between the Company and Cell Genesys. The agreement set forth
the terms and conditions for the transfer of the antibody business unit within
Cell Genesys to Abgenix. The accompanying financial statements include the
operations of Abgenix since July 15, 1996, and the revenues and expenses of the
Abgenix business unit within Cell Genesys prior to July 15, 1996. The statements
of cash flows do not reflect the carve out balances before July 15, 1996, as
such information would not be meaningful. Prior to July 15, 1996, specifically
identified revenues and expenses such as research and development attributable
to the antibody business unit were allocated to Abgenix from Cell Genesys.
General and administrative expenses were allocated based on Abgenix research and
development expense as a percentage of Cell Genesys' total research and
development expenses. From July 16, 1996 to July 31, 1997, Cell Genesys
performed certain general and administrative functions on behalf of Abgenix.
OVERVIEW
Abgenix develops and intends to commercialize antibody therapeutic products
for the prevention and treatment of a variety of disease conditions, including
transplant-related diseases, inflammatory and autoimmune disorders, and cancer.
The Company has developed XenoMouse technology, a proprietary technology which
it believes enables it to quickly generate high affinity, fully human antibody
product candidates to essentially any disease target appropriate for antibody
therapy. Abgenix intends to use its XenoMouse technology to build and
commercialize a large and diversified product portfolio through the
establishment of corporate collaborations and internal product development
programs. The Company has recently established collaborative arrangements with
Pfizer, Schering-Plough and Genentech. In addition, the Company has four
proprietary antibody product candidates that are under development internally,
two of which are in human clinical trials. In certain instances, the Company
intends to commercialize select products on its own in niche markets such as
GVHD.
In 1991, Cell Genesys and JT America formed Xenotech, an equally owned
joint venture, to develop genetically modified strains of mice which can produce
human monoclonal antibodies and to commercialize products generated from these
mice. Upon the organization of Abgenix, Cell Genesys assigned its rights in
Xenotech to Abgenix. Xenotech funds its research and development activities
through capital contributions from the Company and JT America and the Company is
obligated to fund 50% of all Xenotech expenses. Pursuant to contractual
arrangements, the Company performs research for the joint venture and receives
payments for such research. The Company accounts for its investment in Xenotech
under the equity method of accounting.
The Company expects that substantially all of its revenues for the
foreseeable future will result from payments under collaborative arrangements,
including fees upon signing, reimbursement for research and development and
milestone payments. The Company has established collaborative arrangements with
Pfizer, Schering-Plough and Genentech. Pursuant to the Company's research
collaboration with Pfizer, Pfizer may make additional payments to the Company
upon completion of certain research milestones. Pfizer has an option to expand
the research collaboration to include up to two additional antigen targets. If
Pfizer chooses to exercise its option, the Company could receive potential
license fees and milestone
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payments of up to approximately $8.0 million per antigen target upon the
completion of certain milestones. Additionally, if a product receives marketing
approval from the FDA or an equivalent foreign agency, the Company is entitled
to receive royalties on future product sales by Pfizer. Pursuant to the
Company's research collaboration with Schering-Plough, Schering-Plough will be
obligated to make additional payments to the Company upon completion of the
research. In addition, the agreement provides Schering-Plough with an option,
for a limited time, to enter into a research, option and license agreement. If
the option is exercised, the research, option and license agreement may provide
the Company with up to approximately $8.0 million in additional research fees
and milestone payments upon the completion of certain milestones. Additionally,
if a product receives marketing approval from the FDA or an equivalent foreign
agency, the Company is entitled to receive royalties on future product sales by
Schering-Plough. Pursuant to the Company's research collaboration with
Genentech, Genentech is obligated to make payments to the Company for
performance of research activities. In addition, the agreement provides
Genentech with options, for a limited time, to enter into product license
agreements with respect to each of two antigens. If an option is exercised, a
product license agreement may provide Abgenix with up to approximately $5.5
million per antigen target in license fees and milestone payments to be made
upon completion of certain milestones. Additionally, if a product receives
marketing approval from the FDA or an equivalent foreign agency, the Company is
entitled to receive royalties on future product sales by Genentech. Payments
under these collaborative arrangements will be subject to significant
fluctuation in both timing and amount and therefore the Company's revenues and
results of operations for any period may not be comparable to the revenues or
results of operations for any other period. To date, all of the Company's
revenues have resulted primarily from research and development funding and
milestone payments and may not be indicative of the Company's future performance
or of the ability of the Company to continue to achieve such milestones.
Since inception, the Company has funded its research and development
activities primarily through contributions from Cell Genesys, revenues from
collaborative arrangements, private placements of preferred stock and equipment
leaseline financings and loan facilities. The Company has incurred operating
losses in each of the last three years of operation, including net losses of
approximately $8.3 million, $7.1 million, $35.9 million and $5.3 million in
1995, 1996, 1997 and the three months ended March 31, 1998, respectively, and as
of March 31, 1998, had an accumulated deficit of approximately $57.8 million.
The Company's losses have resulted principally from costs incurred in performing
research and development to develop its XenoMouse technology and subsequent
antibody product candidates, from the non-recurring cross-license and settlement
charge and from general and administrative costs associated with the Company's
operations. The Company expects to incur additional operating losses until at
least the year 2000 as a result of increases in its expenditures for research
and product development, including costs associated with conducting preclinical
testing and clinical trials. The Company expects the amount of such losses will
fluctuate significantly from quarter to quarter as a result of increases or
decreases in the Company's research and development efforts, the execution or
termination of collaborative arrangements, or the initiation, success or failure
of clinical trials.
In 1994, Cell Genesys and GenPharm and, beginning in 1996, Abgenix became
involved in litigation primarily related to intellectual property rights
associated with a method for inactivating a mouse's antibody genes and
technology pertaining to transgenic mice capable of producing human antibodies.
Rather than endure the cost and business interruption of protracted litigation,
on March 27, 1997, Cell Genesys announced, along with Abgenix, Xenotech and
Japan Tobacco, that it had signed a comprehensive patent cross-license and
settlement agreement with GenPharm that resolved all related litigation and
claims between the parties. Under the cross-license and settlement agreement,
the Company has licensed on a non-exclusive basis certain patents, patent
applications, third party licenses and inventions pertaining to the development
and use of certain transgenic rodents including mice that produce fully human
antibodies. The Company uses its XenoMouse technology to generate fully human
antibody products and has not licensed the use of, and does not use, any
transgenic rodents developed or used by GenPharm. As initial consideration for
the cross-license and settlement agreement, Cell Genesys issued a note to
GenPharm due September 30, 1998 for $15.0 million payable by Cell Genesys and
convertible into shares of Cell Genesys common stock, currently at $8.62 per
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share. The note bears interest at a rate of 7% per annum. Of this note,
approximately $3.8 million satisfied certain of Xenotech's obligations under the
agreement. Japan Tobacco also made an initial payment. During 1997, two patent
milestones were achieved and Xenotech was obligated to pay $7.5 million for each
milestone. Xenotech paid $7.5 million to satisfy the first milestone and has
recorded a payable to GenPharm for the remaining $7.5 million. The Company has
recorded a liability of approximately $3.8 million in its balance sheet
representing its share of the Xenotech obligation. The payable is due on or
before November 1998. No additional payments will accrue under this agreement.
The Company has recognized, as a non-recurring charge for cross-license and
settlement, a total of $22.5 million. The Company concluded that the cost of the
cross-license and settlement agreement was properly expensed under Statement of
Financial Accounting Standards No. 2, "Accounting for Research and Development
Costs" because the cross-license received by the Company from GenPharm is
non-exclusive and has no alternative future uses for the Company. See Note 6 of
Notes to the Company's Financial Statements. The Company does not have any
future financial obligations under the cross-license and settlement agreement.
In connection with the grant of stock options since the Company's
organization on July 15, 1996, the Company has recorded aggregate deferred
compensation of approximately $2.3 million through March 31, 1998, representing
the difference between the deemed fair value of the Common Stock for accounting
purposes and the option exercise price at the date of grant. These amounts are
presented as a reduction of stockholders' equity and are amortized ratably over
the vesting period of the applicable options, generally four years. These
valuations resulted in charges to operations of $528,000 and $149,000 in 1997
and the three months ended March 31, 1998, respectively.
RESULTS OF OPERATIONS
Three Months Ended March 31, 1997 and 1998
Revenue under collaborative agreements from related parties consists of
revenue derived principally from performing research for Xenotech. See "Years
Ended December 31, 1995, 1996 and 1997." Revenues from Xenotech decreased from
$335,000 in the three months ended March 31, 1997 to $291,000 in the three
months ended March 31, 1998.
Contract revenue of $600,000 in the three months ended March 31, 1998
consisted of a nonrefundable signing fee paid in connection with the execution
in January 1998 of a collaboration agreement and the achievement of a research
milestone under an existing collaboration agreement.
Research and development expenses consist primarily of compensation and
other expenses related to research and development personnel, costs associated
with preclinical testing and planned clinical trials of the Company's product
candidates and facilities expenses. Research and development expenses increased
from $2.1 million in the three months ended March 31, 1997 to $5.4 million in
the three months ended March 31, 1998. The increase in research and development
expenses reflected increased expenses primarily for the manufacture of antibody
products in connection with the preparation for and the initiation of clinical
trials of ABX-CBL and ABX-IL8.
General and administrative expenses include compensation and other expenses
related to finance and administrative personnel, professional services expenses
and facilities expenses. General and administrative expenses decreased slightly
from $1.0 million in the three months ended March 31, 1997 to $918,000 in the
three months ended March 31, 1998. The slight decrease in general and
administrative expenses reflected the nonrecurrence in the three months ended
March 31, 1998 of expenses incurred in connection with the Company's relocation
to its new facilities in the three months ended March 31, 1997.
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The aggregate nonrecurring charge for cross-license and settlement of $15.0
million in the three months ended March 31, 1997 relates to the initial payment
under the comprehensive patent cross-license and settlement agreement. The
Company recorded the initial settlement amount of $15.0 million in March 1997.
The remaining $7.5 million was recorded in December 1997. See "Overview" and
Note 6 of Notes to the Company's Financial Statements.
Other income and expenses consist of interest income from cash, cash
equivalents and short term investments and interest expense incurred in
connection with equipment lease line financing and loan facilities maintained by
the Company.
Years Ended December 31, 1995, 1996 and 1997
During 1995, 1996 and 1997, the Company derived revenues principally from
performing research for Xenotech. Revenues from the joint venture are recognized
when earned, net of the Company's cash contributions to Xenotech, under the
terms of the related agreements. Research and development funding received in
advance under these agreements is recorded as deferred revenue. Revenues from
the achievement of milestone events are recognized when the milestones have been
achieved. Revenues from Xenotech decreased from $6.2 million in 1995 to $4.7
million in 1996 and to $1.3 million in 1997. Revenues from Xenotech decreased
because Xenotech's research related to developing the genetically modified mice
was essentially completed during 1996. In addition, until July 1995, the Company
did not make capital contributions to the joint venture and, therefore, recorded
all proceeds received from Xenotech as revenue. Revenues in 1997 from Xenotech
research represent a reduced on-going research effort.
Contract revenues of $611,000 in 1997 consisted principally of a
nonrefundable signing fee paid in connection with the execution in December 1997
of a collaboration agreement.
Research and development expenses decreased from $11.9 million in 1995 to
$9.4 million in 1996 and increased to $11.4 million in 1997. The decrease from
1995 to 1996 reflected a decrease of $3.75 million in research activities
related to developing the genetically modified mice for Xenotech, partially
offset by an increase of $1.25 million in costs associated with preclinical
development and testing of the Company's product candidates. The increase in
research and development expenses from 1996 to 1997 reflected increased expenses
in connection with preparation for the initiation of clinical trials of ABX-CBL
and ABX-IL8. Most of the 1997 increase resulted from increased payroll and other
personnel expenses, related laboratory supplies, equipment and facilities
expansion. The Company anticipates that research and development expenses will
increase in future periods as it expands research and development efforts and
clinical trials.
General and administrative expenses remained relatively unchanged at $2.6
million from 1995 to 1996 and increased to $3.5 million in 1997. The increase in
1997 was primarily attributable to increased personnel levels associated with
the expansion of the Company's operations, increased professional services
expenses associated with negotiation of the Company's collaborative arrangements
and increased costs associated with moving to the Company's current facilities.
The Company anticipates that general and administrative expenses will increase
in the future as additional personnel are added to support its operations.
The aggregate non-recurring charge for cross-license and settlement of
$22.5 million in 1997 resulted from the execution of the comprehensive patent
cross-license and settlement agreement with GenPharm. See "Overview" and Note 6
of Notes to the Company's Financial Statements.
Other income and expenses consist of interest income from cash, cash
equivalents and short-term investments and interest expense incurred in
connection with equipment leaseline financing and loan facilities maintained by
the Company.
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LIQUIDITY AND CAPITAL RESOURCES
Since formation, the Company has financed its operations primarily through
capital contributions by, and borrowings from Cell Genesys, revenue from
collaborative arrangements, private placements of Preferred Stock and equipment
leaseline financings and loan facilities. Through March 31, 1998, the Company
has received net cash of $55.7 million from financing activities, consisting
principally of approximately $14.3 million from contributions by Cell Genesys,
$31.1 million from private placements of Preferred Stock, $4.3 million from
construction financing, $2.0 million in lease financing and $4.0 million
borrowed from Cell Genesys and converted to Preferred Stock. Cell Genesys is not
obligated to provide any future funding to the Company.
The Company's net cash used in operating activities was $2.2 million, $10.2
million and $5.4 million in 1996 and 1997 and for the three months ended March
31, 1998, respectively. The cash used for operations was primarily to fund
research and development expenses and manufacturing costs related to the
development of new products.
As of March 31, 1998, the Company had cash, cash equivalents and short-term
investments of $13.3 million. The Company has an agreement with a financing
company under which the Company may finance purchases of up to $3.0 million of
its laboratory and office equipment. The lease term is 48 months and bears
interest at rates ranging from 12.5% to 13.0%, which are based on the change in
the five year U.S. Treasury rate. As of March 31, 1998, the Company had $1.0
million available under the equipment lease. The Company also has a construction
financing line with a bank in the amount of $4.3 million that was used to
finance construction of leasehold improvements at its current facility. The line
matures in January 2001, bears interest at a rate of prime plus one percent
(9.5% at December 31, 1997) and, until the closing of a public offering by the
Company raising net proceeds of at least $20.0 million, is, with certain
exceptions, guaranteed by Cell Genesys. As of March 31, 1998, no further
borrowings were available under the construction financing line.
Over the next 12 months, the Company intends to use approximately $15.0
million of the net proceeds of this offering for research and development,
including the performance of preclinical and clinical trials, and approximately
$3.75 million for the final cross-license and settlement payment reflected as a
short-term payable to related party on the Company's balance sheet as of
December 31, 1998. The balance of the net proceeds will be used for working
capital and for other general corporate purposes over such 12 month period and
thereafter. The amounts actually expended for each purpose and the timing of
such expenditures may vary significantly depending upon numerous factors,
including the results of clinical trials and preclinical testing, the
achievement of milestones under collaborative arrangements, the ability of the
Company to maintain existing and establish additional collaborative
arrangements, the timing and outcome of regulatory actions regarding the
Company's potential products, the costs and timing of expansion of marketing,
sales and manufacturing activities, the costs involved in preparing, filing,
protecting, maintaining and enforcing patent claims and other intellectual
property rights and competing technological and market developments. Pending the
foregoing uses, the Company intends to invest the net proceeds of this offering
in short-term, interest-bearing, investment grade securities.
The Company plans to continue to expend substantial resources for the
expansion of research and development, including costs associated with
conducting preclinical testing and clinical trials. The Company may be required
to expend greater-than-anticipated funds if unforeseen difficulties arise in the
course of completing required additional development of product candidates,
performing preclinical testing and clinical trials of such product candidates,
obtaining necessary regulatory approvals or other aspects of the Company's
business. The Company's future liquidity and capital requirements will depend on
many factors, including continued scientific progress in its research and
development programs, the size and complexity of these programs, the scope and
results of preclinical testing and clinical trials, the time and expense
involved in obtaining regulatory approvals, if any, competing technological and
market developments, the establishment of further collaborative arrangements, if
any, the time and expense of filing and prosecuting patent applications and
enforcing patent claims,
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the cost of establishing manufacturing capabilities, conducting
commercialization activities and arrangements, product in-licensing and other
factors not within the Company's control. Although the Company believes that the
proceeds from this offering, together with the Company's current cash balances,
cash equivalents, short-term investments and cash generated from collaborative
arrangements will be sufficient to meet the Company's operating and capital
requirements for at least the next two years, there can be no assurance that the
Company will not require additional financing within this timeframe. The Company
may be required to raise additional funds through public or private financing,
collaborative relationships or other arrangements. There can be no assurance
that such additional funding, if needed, will be available on terms attractive
to the Company, if at all. Furthermore, any additional equity financing may be
dilutive to stockholders, and debt financing, if available, may involve
restrictive covenants. Collaborative arrangements, if necessary to raise
additional funds, may require the Company to relinquish its rights to certain of
its technologies, products or marketing territories. The failure of the Company
to raise capital when needed could have a material adverse effect on the
Company's business, financial condition and results of operations.
As of December 31, 1997, the Company had federal net operating loss
carryforwards of approximately $15.4 million. The Company's net operating loss
carryforwards exclude losses incurred prior to the organization of Abgenix in
July 1996. Further, the amounts associated with the cross-license and settlement
have been expensed for financial statement accounting purposes and have been
capitalized and amortized over a period of approximately fifteen years for tax
purposes. The net operating loss and credit carryforwards will expire in the
years 2011 through 2012, if not utilized. Utilization of the net operating
losses and credits may be subject to a substantial annual limitation due to the
"change in ownership" provisions of the Internal Revenue Code of 1986 and
similar state provisions. The annual limitation may result in the expiration of
net operating losses and credits before utilization.
RECENT ACCOUNTING PRONOUNCEMENT
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130"), and Statement of Financial Accounting Standards No. 131, "Disclosure
about Segments of an Enterprise and Related Information" ("SFAS 131"), which
require additional disclosures to be adopted beginning in the first quarter of
1998 and on December 31, 1998, respectively. Under SFAS 130, the Company is
required to display comprehensive income and its components as part of the
Company's financial statements. SFAS 131 requires that the Company report
financial and descriptive information about its reportable operating segments.
The adoption of SFAS 130 and SFAS 131 will not have a material effect on the
Company's results of operations or financial condition. The Company is
evaluating the impact, if any, of SFAS 130 and SFAS 131 on its future financial
statement disclosures.
YEAR 2000
The Company relies on computers and computer software in the operation of
its business as do its vendors, suppliers and customers. These computers and
computer software may not be able to properly recognize the dates commencing in
the year 2000. To date, the Company has not found any material impact which may
result from the failure of its computers and computer software or that of its
vendors, suppliers and customers. The Company believes that its business,
financial condition and results of operations will not be materially impacted by
the year 2000 date recognition issue. However, the Company plans to further
assess this issue during 1998 and, if appropriate, develop an action plan to
correct it.
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BUSINESS
The following Business section contains certain forward-looking statements
which involve risks and uncertainties. Actual results and the timing of certain
events could differ materially from those projected in these forward-looking
statements due to a number of factors, including those set forth under "Risk
Factors" and elsewhere in this Prospectus.
OVERVIEW
Abgenix, a biopharmaceutical company, develops and intends to commercialize
antibody therapeutic products for the prevention and treatment of a variety of
disease conditions, including transplant-related diseases, inflammatory and
autoimmune disorders, and cancer. The Company has developed XenoMouse technology
which it believes enables it to quickly generate high affinity, fully human
antibody product candidates to essentially any disease target appropriate for
antibody therapy. Abgenix intends to use its XenoMouse technology to build a
large and diversified product portfolio through the establishment of a number of
corporate collaborations and internal product development. The Company has
recently established collaborative arrangements with Pfizer, Schering-Plough and
Genentech in order to generate antibody product candidates in the fields of
cancer, inflammation and growth factor modulation, respectively. The Company has
four antibody product candidates that are under development internally. Its lead
product candidate, ABX-CBL, is an in-licensed antibody in a multi-center
confirmatory Phase II clinical trial for GVHD. In addition, the Company has
initiated a Phase I clinical trial for ABX-IL8 in psoriasis. Abgenix is in
preclinical development with two other fully human antibody product candidates,
ABX-EGF and ABX-RB2, for use in the treatment and prevention of cancer and
chronic immunological disorders, respectively.
BACKGROUND
The Normal Antibody Response
The human immune system protects the body against a variety of infections
and other illnesses. Specialized cells, which include B cells and T cells, work
in concert with the other components of the immune system to recognize,
neutralize and eliminate from the body numerous foreign substances, infectious
organisms and malignant cells. In particular, B cells generally produce protein
molecules, known as antibodies, which are capable of recognizing substances
potentially harmful to the human body. Such substances are called antigens. Upon
being bound by an antibody, antigens can be neutralized and blocked from
interacting with and causing damage to normal cells. In order to effectively
neutralize or eliminate an antigen without harming normal cells, the immune
system must be able to generate antibodies that bind tightly (i.e., with high
affinity) to one specific antigen (i.e., with specificity).
All antibodies have a common core structure composed of four subunits, two
identical light (L) chains and two identical heavy (H) chains, named according
to their relative size. The heavy and light chains are assembled within the B
cell to form an antibody molecule which consists of a constant region and a
variable region. As shown in figure one, an antibody molecule may be represented
schematically in the form of a "Y" structure.
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LOGO
The base of the "Y", together with the part of each arm immediately next to
the base, is called the constant region because its structure tends to be very
similar across all antibodies. In contrast, the variable regions are at the end
of the two arms and are unique to each antibody with respect to their three
dimensional structures and protein sequences. Because variable regions define
the specific binding sites for a variety of antigens, there is a need for
significant structural diversity in this portion of the antibody molecule. Such
diversity is achieved in the body primarily through a unique mode of assembly
involving a complex series of recombination steps for various gene segments of
the variable region, including the V, D and J segments (see figure two shown
below).
LOGO
The human body is repeatedly exposed to a variety of different antigens.
Accordingly, the immune system must be able to generate a diverse repertoire of
antibodies that are capable of recognizing these multiple antigen structures
with a high degree of specificity. The immune system has evolved a two-step
mechanism in order to accomplish this objective. The first step, immune
surveillance, is achieved through the generation of diverse circulating B cells,
each of which assembles different antibody gene segments in a semi-random
fashion to produce and display on its surface a specific antibody. As a result,
a large number of distinct, albeit lower affinity, antibodies are generated in
the circulation so as to recognize essentially any foreign antigen that enters
the body. While capable of recognizing the antigens as foreign, these lower
affinity antibodies are generally incapable of effectively neutralizing them.
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This limitation of the immune surveillance process is generally overcome by
the normal immune system in a second step called affinity maturation. Triggered
by the initial binding to a specific antigen, the small fraction of B cells that
recognize this antigen is then primed by the immune system to progressively
generate antibodies with higher and higher affinity through a process of
repeated mutation and selection. As a result, the reactive antibodies develop
increasingly higher specificity and affinity with the latter being potentially a
hundred to a thousand times higher than those generated in the previous immune
surveillance process. These more specific, higher affinity antibodies have a
greater likelihood of effectively neutralizing or eliminating the antigen while
minimizing the potential of damaging healthy cells.
Antibodies as Products
Recent advances in the technologies for creating and producing antibody
products coupled with a better understanding of how antibodies and the immune
system function in key disease states have led to renewed interest in the
commercial development of antibodies as therapeutic products. According to a
recent survey by the Pharmaceutical Research and Manufacturers of America,
antibodies account for over 25% of all biopharmaceutical products in clinical
development. The Company estimates that there are up to nine antibody
therapeutic product candidates that are in or have completed Phase III clinical
trials in the United States. In addition, four products, namely, Orthoclone,
ReoPro, Rituxan and Zenapax, are currently being marketed for the treatment of
transplant rejection, cardiovascular disease and cancer.
The Company believes that as products, antibodies have several potential
clinical and commercial advantages over traditional therapies. These include:
- accelerating product development timelines;
- reducing unwanted side effects as a result of high specificity for
the disease target;
- achieving greater patient compliance and higher efficacy as a result
of favorable pharmacokinetics;
- delivering various payloads, including drugs, radiation and toxins,
to specific disease sites; and
- eliciting a desired immune response.
Limitations of Current Approaches to Development of Antibody Products
Despite the early recognition of antibodies as promising therapeutic
agents, most approaches thus far to develop them as products have been met with
a number of commercial and technical limitations. Initial efforts were aimed at
the development of hybridoma cells, which are immortalized mouse
antibody-secreting B cells. Such hybridoma cells are derived from normal mouse B
cells which have been genetically manipulated so that they are capable of
reproducing over an indefinite period of time. They are then cloned to produce a
homogeneous population of identical cells which produce one single type of mouse
antibody capable of recognizing one specific antigen ("monoclonal antibody").
While mouse monoclonal antibodies can be generated to bind to a number of
antigens, they contain mouse protein sequences and tend to be recognized as
foreign by the human immune system. As a result, they are quickly eliminated by
the human body and have to be administered frequently. When patients are
repeatedly treated with mouse antibodies, they will begin to produce antibodies
that effectively neutralize the mouse antibody, a reaction referred to as a
Human Anti-Mouse Antibody ("HAMA") response. In many cases, the HAMA response
prevents the mouse antibodies from having the desired therapeutic effect and may
cause the patient to have an allergic reaction. The potential use of mouse
antibodies is thus best suited to situations where the patient's immune system
is compromised or where only short-term therapy is required. In such settings,
the patient is often incapable of producing antibodies that neutralize the mouse
antibodies or has insufficient time to do so.
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Recognizing the limitations of mouse monoclonal antibodies, researchers
have developed a number of approaches to make them appear more human-like to a
patient's immune system. For example, improved forms of mouse antibodies,
referred to as "chimeric" and "humanized" antibodies, are genetically engineered
and assembled from portions of mouse and human antibody gene fragments. While
such chimeric and humanized antibodies are more human-like, they still retain a
varying amount of the mouse antibody protein sequence, and accordingly may
continue to trigger the HAMA response. Additionally, the humanization process
can be expensive and time consuming, requiring at least two months and sometimes
over a year of secondary manipulation after the initial generation of the mouse
antibody. Once the humanization process is complete, the remodeled antibody gene
must then be expressed in a recombinant cell line appropriate for antibody
manufacturing, adding additional time before the production of preclinical and
clinical material can be initiated. Altogether it may take up to two years from
the start of the humanization process to manufacture a sufficient amount of an
appropriate antibody to initiate clinical trials. In addition, the combination
of mouse and human antibody gene fragments can result in a final antibody
product which is sufficiently different in structure from the original mouse
antibody leading to a decrease in specificity or a loss of affinity.
LOGO
Human Antibodies
The HAMA response can potentially be avoided through the generation of
antibody products with fully human protein sequences. Such fully human
antibodies may increase the market acceptance and expand the use of antibody
therapeutics. Several antibody technologies have been developed to produce
antibodies with 100% human protein sequences (see the figure three shown above).
One approach to generating human antibodies, called phage display technology,
involves the cloning of human antibody genes into bacteriophage, viruses that
infect bacteria, in order to display antibody fragments on the surfaces of
bacteriophage particles. This approach attempts to mimic in vitro the immune
surveillance and affinity maturation processes that occur in the body. Because
phage display technology cannot take advantage of the naturally occurring in
vivo affinity maturation process, the antibody fragments initially isolated by
this approach are typically of moderate affinity. In addition, further genetic
engineering is required to convert the antibody fragments into fully assembled
antibodies and significant manipulation, taking from several months to a year,
may be required to increase their affinities to a level appropriate for human
therapy. Before preclinical or clinical material can be produced, the gene
encoding the antibody derived from phage display technology must, as with a
humanized antibody, be introduced into a recombinant cell line.
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Two additional approaches involving the isolation of human immune cells
have been developed to generate human antibodies. One such approach is the
utilization of immunodeficient mice which lack both B and T cells. Human B cells
and other immune tissue are transplanted into these mice which are then
subsequently immunized with target antigens to stimulate the production of human
antibodies. However, this process is generally limited to generating antibodies
only to nonhuman antigens or antigens to which the human B cell donor had
previously responded. Accordingly, this approach may not be suitable for
targeting many key diseases such as cancer, and inflammatory and autoimmune
disorders where antibodies to human antigens may be required for appropriate
therapy. The other approach involves collecting human B cells which have been
producing desired antibodies from patients exposed to a specific virus or
pathogen. As with the previous approach, this process may not be suitable for
targeting diseases where antibodies to human antigens are required, and
therefore is generally limited to infectious disease targets which will be
recognized as foreign by the human immune system.
THE ABGENIX SOLUTION -- XENOMOUSE TECHNOLOGY
The Company's approach to generating human antibodies with fully human
protein sequences is to use genetically engineered strains of mice in which
mouse antibody gene expression is suppressed and functionally replaced with
human antibody gene expression, while leaving intact the rest of the mouse
immune system. Rather than engineering each antibody product candidate, these
transgenic mice capitalize on the natural power of the mouse immune system in
surveillance and affinity maturation to produce a broad repertoire of high
affinity antibodies. By introducing human antibody genes into the mouse genome,
transgenic mice with such traits can be bred indefinitely. Importantly, these
transgenic mice are capable of generating human antibodies to human antigens
because the only human products expressed in the mice (and therefore recognized
as "self") are the antibodies themselves. Any other human tissue or protein is
thus recognized as a foreign antigen by the mouse and an immune response will be
mounted. Abnormal production of certain human proteins, such as cytokines and
growth factors or their receptors have been implicated in various human
diseases. Neutralization or elimination of these abnormally produced or
regulated human proteins with the use of human antibodies could ameliorate or
suppress the target disease. Therefore, the ability of these transgenic mice to
generate human antibodies against human antigens could offer an advantage to
drug developers compared with some of the other approaches described previously.
A challenge with this approach, however, has been to introduce enough of the
human antibody genes in appropriate configuration into the mouse genome to
ensure that these mice are capable of recognizing the broad diversity of
antigens relevant for human therapies.
To make its transgenic mice a robust tool capable of consistently
generating high affinity antibodies which can recognize a broad range of
antigens, the Company equipped its XenoMouse with approximately 80% of the human
heavy chain antibody genes and a significant amount of the human light chain
genes. The Company believes that the complex assembly of these genes together
with their semi-random pairing allows XenoMouse to recognize a diverse
repertoire of antigen structures. XenoMouse technology further capitalizes on
the natural in vivo affinity maturation process to generate high affinity, fully
human antibodies. In addition, the Company has developed multiple strains of
XenoMouse, each of which is capable of producing a different class of antibody
to perform different therapeutic functions. The Company believes that its
various XenoMouse strains will provide maximum flexibility for drug developers
in generating antibodies of the specific type best suited for a given disease
indication.
XENOMOUSE TECHNOLOGY ADVANTAGES
The Company believes that its XenoMouse technology offers the following
advantages:
Producing Antibodies With Fully Human Protein Sequences. The Company's
XenoMouse technology, unlike chimeric and humanization technologies, allows the
generation of antibodies with 100% human protein sequences. Antibodies created
using XenoMouse technology are not expected to cause a HAMA response even when
administered repeatedly to immunocompetent patients. For this reason,
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antibodies produced using XenoMouse technology are expected to offer a better
safety profile and to be eliminated less quickly from the human body, reducing
the frequency of dosing.
Generating a Diverse Antibody Response to Essentially Any Disease Target
Appropriate for Antibody Therapy. Because a substantial majority of human
antibody genes has been introduced into XenoMouse, the technology has the
potential to generate high affinity antibodies that recognize more antigen
structures than other transgenic technologies. In addition, through immune
surveillance, XenoMouse technology is expected to be capable of generating
antibodies to almost any medically relevant antigen, human or otherwise. For a
given antigen target, having multiple antibodies to choose from could be
important in selecting the optimal antibody product.
Generating High Affinity Antibodies Which Do Not Require Further
Engineering. XenoMouse technology uses the natural in vivo affinity maturation
process to generate antibody product candidates usually in two to four months.
These antibody product candidates may have affinities as much as a hundred to a
thousand times higher than those seen in phage display. In contrast to
antibodies generated using humanization and phage display technology, XenoMouse
antibodies are produced in one step without the need for any subsequent
engineering, a process which at times has proven to be challenging and time
consuming. By avoiding the need to further engineer antibodies, the Company
reduces the risk that an antibody's structure and therefore functionality will
be altered between the initial antibody selected and the final antibody placed
into production.
Enabling More Efficient Product Development. In contrast to humanization or
phage display, which require the cloning of an antibody gene and the generation
of a recombinant cell line, the B cells generated in XenoMouse can be turned
directly into hybridoma cell lines for human antibody production. Therefore, a
supply of monoclonal antibodies can be produced quickly to allow the timely
initiation of preclinical and clinical studies. Furthermore, since XenoMouse
technology can potentially produce multiple product candidates more quickly than
humanization and phage display technology, preclinical testing can be conducted
on several antibodies in parallel to identify the one optimal product candidate
which will be tested in clinical trials.
Providing Flexibility in Choosing Manufacturing Processes. Once an antibody
with the desired characteristics has been identified, preclinical material can
be produced either directly from hybridomas or from recombinant cell lines.
Humanized and phage display antibodies, having been engineered, cannot be
produced in hybridomas. In addition to potential time savings, production in
hybridomas avoids the need to license certain third party intellectual property
rights covering the production of antibodies in recombinant cell lines.
ABGENIX STRATEGY
The Company's objective is to be a leader in the generation, development
and commercialization of novel antibody-based biopharmaceutical products. Key
elements of the Company's strategy include:
Building a Large and Diversified Product Portfolio. Utilizing its XenoMouse
technology, the Company intends to build a large and diversified product
portfolio, including a mix of out-licensed and internally developed product
candidates. This portfolio is expected to target serious medical conditions
including: transplant-related disorders, inflammation, autoimmune and
cardiovascular disease and cancer. Abgenix intends to collaborate with leading
academic researchers and companies involved in the identification and
development of novel antigens. The Company believes the speed and cost
advantages of its technology will enable it to make cost-effective use of
available human and capital resources. Abgenix can thus pursue multiple product
candidates in parallel through the preclinical and early clinical stages before
entering into a corporate collaboration. As a result, the Company believes it
can create, for itself or for marketing to potential corporate partners, a
package that includes antigen rights, human antibodies, and preclinical and
clinical data.
Establishing Multiple Corporate Collaborations. Abgenix intends to generate
short and long term revenues by entering into multiple collaborations with
pharmaceutical and biotechnology companies. For any given product candidate, the
terms of the collaboration arrangement are expected to reflect
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the value the Company adds to the drug development process. The Company intends
to form two types of collaborations with corporate partners: technology
collaborations and proprietary product collaborations. In the former, including
the Company's existing collaborations with Pfizer, Schering-Plough, and Cell
Genesys, Abgenix plans to use its XenoMouse technology to make human antibodies
to certain antigen targets for each corporate partner. The terms of the
Company's technology collaborations could include license fees and milestone
payments plus royalties on future product sales. On the other hand, proprietary
product collaborations would involve antibodies made to antigen targets sourced
by the Company. Antibody candidates for proprietary product collaborations
currently include: ABX-IL8, ABX-EGF and ABX-RB2. The terms of the Company's
proprietary product collaborations could include license fees upon signing,
milestone payments, potential reimbursement for research and development
activities performed by the Company plus royalties on future product sales. The
Company's mix of technology collaborations and proprietary product
collaborations could result in a growing portfolio of product candidates for
Abgenix with development and marketing costs borne by the partner, while
allowing Abgenix to share in the revenues of successful products.
Commercializing Products in Niche Markets. The Company intends to complete
all stages of clinical development and commercialization for select products in
niche markets. For example, the Company intends to develop and commercialize
ABX-CBL on its own, at least in North America. ABX-CBL is an in-licensed
monoclonal antibody in Phase II clinical trials for GVHD. Because of the
seriousness of GVHD and the lack of alternative treatments, the clinical trials
for ABX-CBL are expected to involve a small number of patients to be followed
over a short time period. In addition, the GVHD market is largely concentrated
in leading bone marrow transplant centers and should, therefore, be adequately
addressed by a small direct sales force. Future antibody products with similar
market characteristics will also be considered candidates for development and
commercialization by the Company on its own.
PRODUCT DEVELOPMENT PROGRAMS
Abgenix is currently developing antibody therapeutics for a variety of
indications. The table below sets forth the development status of the Company's
product candidates.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PRODUCT
CANDIDATE INDICATION STATUS(1)
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ABX-CBL GVHD Phase II
-----------------------------------------------------------------------------------------------------------------------
Organ Transplant Rejection Preclinical
ABX-RB2 ------------------------------------------------------------------------------------
Autoimmune Disease Preclinical
-----------------------------------------------------------------------------------------------------------------------
Psoriasis Phase I
ABX-IL8 ------------------------------------------------------------------------------------
Other Inflammatory Diseases Preclinical
-----------------------------------------------------------------------------------------------------------------------
ABX-EGF EGF Dependent Cancers Preclinical
</TABLE>
- --------------------------------------------------------------------------------
- ---------------
(1) "Phase II" indicates efficacy testing in a limited patient population.
"Phase I" indicates safety and efficacy testing in a limited patient
population and toxicology testing in animal models. "Preclinical" indicates
that the product candidate selected for development has met predetermined
criteria for potency, specificity, manufacturability and pharmacologic
activity in animal and in vitro models.
ABX-CBL and ABX-RB2
The CBL antigen is selectively expressed on activated immune cells
including T cells, B cells and natural killer cells. To accelerate its
commercialization plans, the Company obtained in February 1997 from Ronald J.
Billing, Ph.D. an exclusive license to ABX-CBL, a proprietary mouse monoclonal
antibody. Pursuant to the terms of the license, the Company pays an annual
license maintenance fee of $50,000 and is obligated to commit at least $1
million annually to the development of ABX-CBL until ABX-CBL receives regulatory
approval in any country. In addition, the Company will pay royalties on future
product sales and is obligated to issue 25,000 shares of Common Stock upon the
occurrence of
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certain milestones. The Company is currently conducting a multi-center
confirmatory Phase II clinical trial for ABX-CBL in GVHD. A mouse antibody can
be utilized to treat GVHD patients because their immune system is either
non-functioning or severely suppressed and, therefore, no HAMA responses should
be generated. In addition, the Company has developed a fully human monoclonal
antibody, ABX-RB2, using its XenoMouse technology to target the same antigen for
use in chronic inflammatory disorders. The Company believes both products have
the ability to destroy activated immune cells without affecting the entire
immune system.
Graft Versus Host Disease. The Company is developing ABX-CBL to reverse
unwanted immune responses such as occurs in GVHD. GVHD is a life threatening
complication that frequently occurs following an allogeneic bone marrow
transplant ("BMT"). BMTs are used in the treatment of patients with end stage
leukemia and certain other serious cancers and immune system disorders. An
allogeneic BMT procedure involves transferring marrow, the graft, from a healthy
person into an immunosuppressed patient, the host. The transplant is intended to
restore normal circulating immune cells to a patient whose own immune system is
either functionally deficient or has been damaged by the treatment of an
underlying disease such as cancer and therefore does not have the ability to
mount a sufficient immune response. Often a portion of the graft recognizes the
host's own cells as foreign, becomes activated and attacks them, resulting in
GVHD. GVHD is graded based on clinical symptoms from I, which is the mildest
form, to IV, which is the most severe form. It typically involves damage to
multiple organ systems, including the skin, liver and intestines. GVHD causes
extreme suffering and is the primary cause of death in allogeneic bone marrow
transplant patients. It is estimated that approximately 12,000 allogeneic BMTs
will be performed worldwide in 1998, and this number has been growing at about
15% per year. GVHD occurs in approximately 50% of allogeneic BMTs and the
treatment costs for GVHD in the United States are estimated to be about $80,000
per patient. Based on a published clinical study, it is estimated that roughly
50% of patients with GVHD fail to respond to current treatments, which consist
of steroid and other drug treatments to suppress the grafted immune cells. Less
than 15% of steroid resistant GVHD sufferers survive for more than one year. The
Company believes that a safer and more effective treatment for GVHD could result
in increased use of BMTs.
In four separate clinical studies conducted prior to the Company obtaining
an exclusive license to ABX-CBL, a total of 25 patients with GVHD were treated
with the antibody. No safety concerns with ABX-CBL were identified in these
studies. One such trial, which has been published, was conducted at St. Jude
Hospital in Memphis, Tennessee. In this trial, ten patients with steroid
resistant, Grade III to IV GVHD were treated with daily doses of ABX-CBL for up
to six weeks. The publication reported that five of ten patients had a complete
remission of GVHD, while four of ten had at least a two grade improvement in
their GVHD score. Only one patient did not respond to the therapy. Another
patient who was treated at St. Jude Hospital after publication of the study
experienced a two grade improvement in the patient's GVHD score without adverse
side effects. Six additional patients with GVHD were treated at the University
of Wisconsin and Cook-Ft. Worth Hospital. The reports from these sites indicated
that these patients showed similar results to those described in the published
trial conducted at St. Jude Hospital, with four of the six patients showing at
least a two grade improvement in their GVHD score. In addition, eight other GVHD
patients received treatment at Stanford University and four of the patients were
noted to have some improvement in their GVHD score, despite using a dose of less
than one-tenth of that employed at the other sites.
Immune reaction to the mouse antibody was assessed in several patients and
no HAMA response was detected clinically. Furthermore, no adverse clinical
responses consistent with an antibody-induced allergic reaction were observed.
In addition, a number of patients were followed after the conclusion of the
study for as long as one year and no adverse ABX-CBL events were observed.
Based in part on the clinical data described above, the Company commenced a
multi-center confirmatory Phase II clinical trial in January 1998 with ABX-CBL
in GVHD. This dose escalation trial is expected to enroll a total of 48 patients
suffering from Grade III or IV GVHD and who have failed to respond to steroid
treatment. The Company believes that this trial will be concluded in 1998.
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In certain immunological diseases where chronic administration of a drug
targeting the CBL antigen is desirable, it may be important to use a fully human
antibody to avoid the risk of a HAMA response. Such diseases include organ
transplant rejection, primarily kidney and corneal transplant rejection, as well
as autoimmune disorders.
Using its XenoMouse technology, the Company has generated ABX-RB2, a fully
human antibody which targets the CBL antigen, and is conducting preclinical
studies on this product candidate. While no human data is available on ABX-RB2,
several clinical trials have been performed using ABX-CBL, the first generation
mouse antibody to the CBL antigen, for the treatment of kidney and corneal
transplant rejection.
Organ Transplant Rejection. Three clinical trials had been conducted for
the treatment of kidney transplant rejection using ABX-CBL prior to the Company
obtaining an exclusive license to this antibody. In two trials conducted at
Sendai Shakai Hoken Hospital in Japan, ABX-CBL was administered intravenously
daily for nine days to 41 patients whose kidney transplant rejections were
resistant to steroid therapy. In the first trial, organ rejection was reversed
in 17 of 19 patients. In the second trial, organ rejection was reversed in a
dose dependent fashion in 18 of the 22 patients treated. A third clinical trial
was conducted at the University of California at Los Angeles. In this study, 13
of the 18 patients had cadaveric donor transplants. This more refractory
population responded to nine days of ABX-CBL treatment with an overall response
rate of 50%. Subset analysis indicated that of the patients treated prior to
severe renal failure, as many as 75% experienced reversal of the kidney
rejections. No serious treatment-related side effects were observed in any of
the patients in these three trials.
Each year there are approximately 11,000 kidney transplants in the United
States. Depending upon a variety of patient risk factors, many of these
procedures result in the patient's immune system rejecting the organ. Current
therapy for kidney transplant rejection involves administering steroids or other
immune system modulators, which may suffer from suboptimal efficacy profiles or
dose limiting toxicities.
In addition to the use of ABX-RB2 in kidney transplant rejection, the
Company is also exploring its potential use in corneal transplantation. In a
clinical trial conducted at the University of California at San Diego prior to
the Company obtaining an exclusive license to ABX-CBL, six patients were treated
with ABX-CBL after the onset of rejection and four showed graft preservation. No
serious adverse side effects related to the infusion of ABX-CBL or to an immune
response were observed in any of the six patients.
Although there can be no assurance that the data observed with ABX-RB2 in
these indications will demonstrate the same degree of efficacy as the data
observed with ABX-CBL, the Company believes these studies may assist in the
design of preclinical and clinical protocols for future development.
Autoimmune Disease. In autoimmune disease, a subset of the patient's immune
cells, often including both B and T cells, react abnormally to a natural
component of the patient's own tissue. Because these immune cells are constantly
exposed to the tissue component, they are in a perpetual state of activation.
Based on the presumed mechanism of action of ABX-RB2, the Company anticipates
that it may be effective in treating autoimmune disease. Before initiating
clinical trials, this concept will be tested in preclinical studies in a series
of animal models of autoimmune disease, including rheumatoid arthritis, lupus,
multiple sclerosis, and diabetes.
ABX-IL8
IL-8, an important inflammatory cytokine produced at sites of inflammation,
attracts and activates white blood cells that mediate the inflammation process.
A number of preclinical studies suggest that excess IL-8 may contribute to the
pathology and clinical symptoms associated with certain inflammatory disorders.
Clinical studies have demonstrated significantly increased levels of IL-8 in
plasma or other bodily fluids of patients with certain inflammatory diseases,
including psoriasis, rheumatoid arthritis and inflammatory bowel disease.
Antibodies to IL-8 have been shown to block immune cell infiltration and the
associated pathology in animal models of several of these diseases as well as in
reperfusion injury. Using its XenoMouse technology, the Company has generated
ABX-IL8, a
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proprietary human monoclonal antibody, that binds to IL-8 with high affinity.
Abgenix in-licensed ABX-IL8 from Xenotech in March 1996. In exchange for a
license fee and royalty payments on future product sales, the Company received
an exclusive license to ABX-IL8 within the United States, its territories and
possessions, Canada and Mexico and a co-exclusive license with Japan Tobacco in
the rest of the world, excluding Japan, Taiwan and South Korea.
Psoriasis. Psoriasis is a chronic disease that results in plaques, a
thickening and scaling of the skin accompanied by local inflammation. The
disease affects approximately four to five million patients in the United States
and can be debilitating in its most severe form. Approximately 500,000 psoriasis
patients suffer from a severe enough form of the disease to require systemic
therapy with immune suppressants and ultraviolet phototherapy. The risk of
serious adverse side effects associated with these therapies often requires the
patients to alternate these various therapeutic modalities as a precautionary
measure.
Scientific studies have shown that IL-8 concentrations can be elevated by a
factor of 150 in psoriatic plaques when compared to normal tissue. The Company
believes that IL-8 may promote psoriasis by contributing to three distinct
disease-associated processes. First, IL-8 is produced by a type of skin cell
called keratinocytes, and is a potent growth factor for these skin cells. It may
therefore contribute to the abnormal keratinocyte proliferation in psoriatic
plaques. Second, IL-8 attracts and activates immune cells which contribute to
the inflammation of the psoriatic plaque. Finally, IL-8 promotes angiogenesis
which augments the blood supply necessary for growth of the psoriatic plaque.
The Company has conducted several studies with ABX-IL8 in animal models
relevant to psoriasis. The ability of the antibody to inhibit two processes
relevant to psoriasis in vivo were tested individually. In a rabbit model, it
was determined that systemic administration of ABX-IL8 inhibits the migration of
immune cells from the bloodstream to a site of skin inflammation. Furthermore,
the ability of ABX-IL8 to inhibit angiogenesis has been demonstrated both in a
rat corneal model as well as in a mouse tumor model. In addition,
pharmacokinetic studies in monkeys indicate that ABX-IL8 has a long serum
half-life, which should allow relatively infrequent dosing, potentially making
it a more attractive option for patients receiving chronic therapy. Finally, in
preliminary studies in a mouse model of psoriasis, ABX-IL8 was shown to block
the formation of psoriatic plaques.
Rheumatoid Arthritis. Elevated levels of IL-8 in the synovial fluid of
rheumatoid arthritis patients have been reported to correlate with the number of
infiltrating immune cells. Third party published studies have reported that the
injection of non-human antibodies to IL-8 into a rabbit model of rheumatoid
arthritis blocked immune cell infiltration and synovial membrane damage.
Inflammatory Bowel Disease. Elevated levels of IL-8 have been found in the
colon of patients with inflammatory bowel disease and the extent of elevation
has been shown to correlate with the degree of inflammation. Third party
published studies have reported that injection of non-human antibodies to IL-8
in a rabbit model of colitis reduced colon inflammation.
The Company has initiated a Phase I clinical trial in psoriasis for ABX-IL8
and intends to follow this with an expansion to a number of other inflammatory
indications in Phase II trials. Because of the many common features in the
pathogenesis of psoriasis, rheumatoid arthritis and inflammatory bowel disease,
data collected in a Phase I trial in psoriasis could support initiation of Phase
II trials in the other indications.
ABX-EGF
Tumor cells that overexpress epidermal growth factor receptors ("EGFr") on
their surface often depend on EGFr's activation for growth. EGFr is
overexpressed in a variety of cancers including lung, breast, ovarian, bladder,
prostate, colorectal, kidney and head and neck. This activation is triggered by
the binding to EGFr by EGF or Transforming Growth Factor alpha ("TGF(LOGO)"),
both of which are expressed by the tumor or by neighboring cells. The Company
believes that blocking the ability of EGF and TGF(LOGO) to bind with EGFr may
offer a treatment for certain cancers. ABX-EGF, a fully human
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monoclonal antibody generated using XenoMouse technology, binds to EGFr with
high affinity and has been shown to inhibit tumor cell proliferation in vivo and
cause eradication of EGF dependent human tumors established in mouse models.
Abgenix in-licensed ABX-EGF from Xenotech in November 1997. In exchange for a
license fee and royalty payments on future product sales, the Company received
an exclusive worldwide license to ABX-EGF. The Company is conducting preclinical
studies and assessing which tumor types to pursue as possible targets for
treatment with ABX-EGF. Studies have shown that ABX-EGF can inhibit growth of
EGF-dependent human tumors cells in mouse models. ABX-EGF has also demonstrated
the ability to reverse cancer cell growth and cause eradication of established
tumors in mice even when administered after significant tumor growth has
occurred. Furthermore, in these models where tumors were eradicated, no relapse
of the tumor was observed after discontinuation of the antibody treatment.
COLLABORATIVE ARRANGEMENTS
Research Collaboration and License Option Agreement with Pfizer
In December 1997, Abgenix, established a research collaboration with Pfizer
to develop antibody products for up to three undisclosed antigens, the first of
which is in the field of cancer. Under the research collaboration agreement,
Abgenix is using its XenoMouse technology to generate fully human antibodies to
the first antigen target designated by Pfizer. In connection with the execution
of the agreement, Pfizer paid the Company a fee upon signing and may make
additional payments to Abgenix upon completion of certain research milestones.
Additionally, Pfizer has an option to expand the research collaboration to
include up to two more undisclosed antigen targets. The research collaboration
agreement expires in December 1999.
Concurrent with the execution of the research collaboration agreement,
Pfizer and Abgenix entered into a license and royalty agreement that grants
Pfizer the option to acquire an exclusive, worldwide license to develop, make,
use and sell antibody products derived from the research collaboration. If
Pfizer chooses to exercise its option for additional antigen targets, Abgenix
could receive potential license fees and milestone payments of up to
approximately $8.0 million per antigen target upon the completion of certain
milestones, including preclinical and clinical trials and receipt of regulatory
approval. Additionally, if a product receives marketing approval from the FDA or
an equivalent foreign agency, the Company is entitled to receive royalties on
future product sales by Pfizer. Pfizer will be responsible for manufacturing,
product development and marketing of any product developed through this
collaboration. In connection with the execution of the research collaboration
agreement and the license and royalty agreement, in January 1998 Pfizer
purchased 160,000 shares of the Company's Series C Preferred Stock for
approximately $1.3 million. Such shares convert into 160,000 shares of Common
Stock upon this offering.
Research Collaboration with Schering-Plough
In January 1998, Abgenix established a research collaboration with
Schering-Plough to develop antibody products for an undisclosed antigen in the
field of inflammation. Under the agreement, Abgenix is using its XenoMouse
technology to generate fully human antibodies to an antigen target designated by
Schering-Plough. In connection with the execution of the agreement,
Schering-Plough paid the Company a fee upon signing and will be obligated to
make additional payments to Abgenix upon completion of the research.
In addition, the agreement provides Schering-Plough with an option, for a
limited time, to enter into a research, option and license agreement that
provides Schering-Plough with an option to obtain an exclusive worldwide license
to develop, make, use and sell antibody products derived from the research
collaboration. If the option is exercised, the research, option and license
agreement may provide Abgenix with up to approximately $8.0 million in
additional research fees and milestone payments upon the completion of certain
milestones, including preclinical and clinical trials and receipt of regulatory
approval. Additionally, if a product receives marketing approval from the FDA or
an equivalent foreign agency, the Company is entitled to receive royalties on
future product sales by Schering-Plough.
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Research License and Option Agreement with Genentech
In April 1998, Abgenix established a research collaboration with Genentech
to develop antibody products for an undisclosed antigen designated by Genentech
in the field of growth factor modulation. In June 1998, the Company and
Genentech expanded their collaboration to include a second undisclosed antigen
in the field of cardiovascular research. Under the research license and option
agreement, as amended, Abgenix will allow Genentech to use XenoMouse technology
to generate fully human antibodies to the antigen targets. Genentech is
obligated to make payments to Abgenix for performance of research activities.
In addition, the agreement provides Genentech with options, for a limited
time, to enter into product license agreements that provide Genentech with an
exclusive worldwide license, with respect to the antigen in the field of growth
factor modulation, and a license, with respect to the antigen in the field of
cardiovascular research, to develop, make, use and sell antibody products
derived from the research collaboration. If an option is exercised, a product
license agreement may provide Abgenix with up to approximately $5.5 million per
antigen target in license fees and milestone payments to be made upon completion
of certain milestones, including clinical trials and receipt of regulatory
approvals. Additionally, if a product receives marketing approval from the FDA
or an equivalent foreign agency, the Company is entitled to receive royalties on
future product sales by Genentech. Genentech will be responsible for
manufacturing, product development and marketing of any product developed
through this collaboration.
Gene Therapy Rights Agreement with Cell Genesys
In November 1997, the Company and Cell Genesys entered into the Gene
Therapy Rights Agreement (the "GTRA"). The GTRA provides Cell Genesys, a gene
therapy company, with certain rights to commercialize products based on
antibodies generated with XenoMouse technology in the field of gene therapy.
Under the GTRA, Cell Genesys has certain rights to direct the Company to make
antibodies to two antigens per year. In addition, Cell Genesys has an option to
enter into a license to commercialize antibodies binding to such antigens in the
field of gene therapy. Cell Genesys is obligated to make certain payments to the
Company for these rights including royalties on future product sales. The GTRA
also prohibits the Company from granting any third party licenses for antibody
products based on antigens nominated by the Company for its own purposes where
the primary field of use is gene therapy. In the case of third party licenses
granted by the Company where gene therapy is a secondary field, the Company is
obligated to share with Cell Genesys a portion of the cash milestone payments
and royalties resulting from any products in the field of gene therapy.
JOINT VENTURE WITH JAPAN TOBACCO
Xenotech
In June 1991, Cell Genesys entered into several agreements with JT America
for the purpose of forming an equally owned limited partnership, named Xenotech.
In connection with the formation of Xenotech, both Cell Genesys and JT America
contributed cash and Cell Genesys contributed the exclusive right to certain of
its technology for the research and development of genetically modified strains
of mice that can produce fully human antibodies. Cell Genesys assigned its
rights in Xenotech to the Company in connection with the formation of the
Company. As part of the Xenotech relationship, the Company provides research and
development on behalf of Xenotech in exchange for cash payments. As of March 31,
1998, the Company has made capital contributions to Xenotech of approximately
$18.3 million and has received approximately $41.6 million in funding for
research related to the development of XenoMouse technology, with research and
development funding for identified projects committed through 1998.
Product Rights
Under the Master Research, License and Option Agreement among the Company,
Japan Tobacco and Xenotech (the "MRLOA"), the Company and Japan Tobacco have
been provided with colonies of
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transgenic mice that have been developed for Xenotech pursuant to the Company's
research and development efforts on behalf of Xenotech. Under the MRLOA, the
Company and Japan Tobacco have the right to use the transgenic mice for research
purposes. The right to commercialize medical products that incorporate
antibodies derived through the use of the transgenic mice can be licensed from
Xenotech by the Company and/or Japan Tobacco pursuant to a nomination process by
which the Company and Japan Tobacco have the right to select a certain number of
antigens per year and receive an option to the commercial rights in antibodies
that bind to the selected antigens. Both the Company and Japan Tobacco are
obligated to make royalty payments to Xenotech on revenues derived from the sale
of such antibody products. All of such payments to Xenotech are then equally
shared by the Company and JT America.
Under the nomination process, if either the Company or Japan Tobacco (but
not both) selects an antigen, the selecting party receives an option to an
exclusive worldwide license. If both the Company and Japan Tobacco select the
same antigen at the same time, each party has an option to an exclusive license
in its home territory and a co-exclusive license in the rest of the world. The
MRLOA defines the home territory of Japan Tobacco as Japan, Korea and Taiwan and
the home territory of the Company as North America. In the former case where one
party selects an antigen, the nonselecting party has the opportunity to obtain
an option to an exclusive license to the selected antigen in the nonselecting
party's home territory by exercising its buy-in right within the allotted time.
Each party has a limited number of buy-in rights, and they cannot be exercised
by the nonselecting party if the antigen selected is subject to proprietary
rights of a third party and the third party is unwilling to license its rights
to the antigen to the nonselecting party.
INTELLECTUAL PROPERTY
The Company's patent position, like that of other biotechnology and
pharmaceutical companies, is highly uncertain and involves complex legal and
factual questions. Claims made under patent applications may be denied or
significantly narrowed. There can be no assurance that any patents which may be
issued as a result of the Company's United States and international patent
applications will provide any competitive advantage to the Company or that they
will not be successfully challenged, invalidated or circumvented in the future.
In addition, there can be no assurance that competitors, many of which have
substantial resources and have made significant investments in competing
technologies, will not seek to apply for and obtain patents that will prevent,
limit or interfere with the Company's ability to make, use and sell its
potential products either in the United States or in international markets.
The Company's success depends in part on its ability to obtain patents,
protect trade secrets, operate without infringing the proprietary rights of
others and prevent others from infringing on the proprietary rights of the
Company. The Company's policy is to seek to protect its proprietary position by,
among other methods, filing United States and foreign patent applications
related to its proprietary technology, inventions and improvements that are
important to the development of its business. Proprietary rights relating to the
Company's technologies will be protected from unauthorized use by third parties
only to the extent that they are covered by valid and enforceable patents or are
effectively maintained as trade secrets. There can be no assurance that any
patents owned by, or licensed to, the Company will afford protection against
competitors or that any pending patent applications now or hereafter filed by,
or licensed to, the Company will result in patents being issued. In addition,
the laws of certain foreign countries do not protect the Company's intellectual
property rights to the same extent as do the laws of the United States. The
patent position of biopharmaceutical companies involves complex legal and
factual questions and, therefore, their enforceability cannot be predicted with
certainty. There can be no assurance that any of the Company's patents or patent
applications, if issued, will not be challenged, invalidated or circumvented, or
that the rights granted thereunder will provide proprietary protection or
competitive advantages to the Company against competitors with similar
technology. Furthermore, there can be no assurance that others will not
independently develop similar technologies or duplicate any technology developed
by the Company.
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While the Company has multiple patent applications pending in the United
States, to date, the Company has no United States patents relating to XenoMouse
technology. One issued European Patent owned by the Company relating to
XenoMouse technology is currently undergoing opposition proceedings within the
European Patent Office, and no assurance can be given regarding the outcome of
this opposition. The Company intends to continue to file patent applications as
appropriate for patents covering both its product candidates and processes.
There can be no assurance that patents will issue from any of these
applications, that any patent will issue on technology arising from additional
research or that patents that may issue from such applications will be
sufficient to protect the Company's technologies.
Research has been conducted for many years in the antibody field. This has
resulted in a substantial number of issued patents and an even larger number of
patent applications. Patent applications in the United States are, in most
cases, maintained in secrecy until patents issue, and publication of discoveries
in the scientific or patent literature frequently occurs substantially later
than the date on which the underlying discoveries were made. The commercial
success of the Company depends significantly on its ability to operate without
infringing the patents and other proprietary rights of third parties. There can
be no assurance that the Company's technologies do not and will not infringe the
patents or violate other proprietary rights of third parties. In the event of
such infringement or violation, the Company and its corporate partners may be
enjoined from pursuing research, development or commercialization of their
products. Such action would have a material adverse effect on the Company's
business, financial condition and results of operations.
The biotechnology and pharmaceutical industries have been characterized by
extensive litigation regarding patents and other intellectual property rights,
and the Company, together with Cell Genesys, Xenotech and Japan Tobacco,
recently settled ongoing litigation with GenPharm regarding certain patents and
other intellectual property rights. See "-- Patent Cross-License and Settlement
Agreement with GenPharm." The defense and prosecution of intellectual property
suits, USPTO interference proceedings and related legal and administrative
proceedings in the United States and internationally involve complex legal and
factual questions. As a result, such proceedings are costly and time-consuming
to pursue and their outcome is uncertain. Litigation may be necessary to enforce
patents issued or licensed to the Company, to protect trade secrets or know-how
owned or licensed by the Company or to determine the enforceability, scope and
validity of the proprietary rights of others. Any litigation, interference or
other administrative proceedings will result in substantial expense to the
Company and significant diversion of effort and resources by the Company's
technical and management personnel. An adverse determination such proceedings to
which the Company may become a party could subject the Company to significant
liabilities to third parties or require the Company to seek licenses which may
not be available from third parties or prevent the Company from selling its
products in certain markets, if at all. Although patent and intellectual
property disputes are often settled through licensing or similar arrangements,
costs associated with such arrangements may be substantial and could include
ongoing royalties. Furthermore, there can be no assurance that the necessary
licenses would be available to the Company on satisfactory terms, if at all.
Adverse determinations in a judicial or administrative proceeding or failure to
obtain necessary licenses could restrict or prevent the Company from
manufacturing and selling its products, if any, which would have a material
adverse effect on the Company's business, financial condition and results of
operations.
In addition to patents, the Company relies on trade secrets and proprietary
know-how, which it seeks to protect, in part, through confidentiality and
proprietary information agreements. There can be no assurance that such
confidentiality or proprietary information agreements will provide meaningful
protection or adequate remedies for the Company's technology in the event of
unauthorized use or disclosure of such information, that the parties to such
agreements will not breach such agreements or that the Company's trade secrets
will not otherwise become known to or be independently developed by competitors.
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<PAGE> 46
Patent Cross-License and Settlement Agreement with GenPharm
In 1994, Cell Genesys and GenPharm and, beginning in 1996, Abgenix became
involved in litigation primarily relating to intellectual property rights
associated with a method for inactivating a mouse's antibody genes and
technology pertaining to transgenic mice capable of producing human antibodies.
Rather than endure the cost and business interruption of protracted litigation,
on March 27, 1997, Cell Genesys announced, along with Abgenix, Xenotech and
Japan Tobacco, that it had signed a comprehensive patent cross-license and
settlement agreement with GenPharm that resolved all related litigation and
claims between the parties. Under the cross-license and settlement agreement,
the Company has licensed on a non-exclusive basis certain patents, patent
applications, third party licenses and inventions pertaining to the development
and use of certain transgenic rodents including mice that produce fully human
antibodies. The Company uses its XenoMouse technology to generate fully human
antibody products and has not licensed the use of, and does not use, any
transgenic rodents developed or used by GenPharm. As initial consideration for
the cross-license and settlement agreement, Cell Genesys issued a note to
GenPharm due September 30, 1998 for $15.0 million payable by Cell Genesys and
convertible into shares of Cell Genesys common stock, currently at $8.62 per
share. The note bears interest at a rate of 7% per annum. Of this note, $3.8
million satisfied certain of Xenotech's obligations under the agreement. Japan
Tobacco also made an initial payment. During 1997, two patent milestones were
achieved and Xenotech was obligated to pay $7.5 million for each milestone.
Xenotech paid $7.5 million to satisfy the first milestone and has recorded a
payable to GenPharm for the remaining $7.5 million. The Company has recorded a
liability of $3.8 million in its balance sheet representing its share of the
Xenotech obligation. The payable is due on or before November 1998. No
additional payments will accrue under this agreement. The Company has recognized
as a non-recurring charge for cross-license and settlement, a total of $22.5
million. See Note 6 of Notes to the Company's Financial Statements. The Company
does not have any future financial obligations under the cross-license and
settlement agreement.
GOVERNMENT REGULATION
All new biopharmaceutical products, including the Company's product
candidates under development and anticipated future products, are subject to
extensive and rigorous regulation by the federal government, principally the FDA
under the FD&C Act and other laws including the Public Health Services Act, and
by state and local governments. Such regulations govern or influence, among
other things, the testing, manufacture, safety, efficacy, labeling, storage,
record keeping, approval, advertising and promotion of such products.
Non-compliance with applicable requirements can result in fines, warning
letters, recall or seizure of products, clinical study holds, total or partial
suspension of production, refusal of the government to grant approvals,
withdrawal of approval and civil and criminal penalties.
The Company believes its antibody products will be classified by the FDA as
"biologic products" as opposed to "drug products." The steps ordinarily required
before a biological product may be marketed in the United States include: (a)
preclinical testing; (b) the submission to the FDA of an IND application, which
must become effective before clinical trials may commence; (c) adequate and
well-controlled clinical trials to establish the safety and efficacy of the
biologic; (d) the submission to the FDA of a Biologics License Application
("BLA"); and (e) FDA approval of the application, including approval of all
product labeling.
Preclinical testing includes laboratory evaluation of product chemistry,
formulation and stability, as well as animal studies to assess the potential
safety and efficacy of each product. Preclinical safety tests must be conducted
by laboratories that comply with FDA regulations regarding Good Laboratory
Practices ("GLPs"). The results of the preclinical tests together with
manufacturing information and analytical data are submitted to the FDA as part
of the IND and are reviewed by the FDA before the commencement of clinical
trials. Unless the FDA objects to an IND, the IND will become effective 30 days
following its receipt by the FDA. There can be no assurance that submission of
an IND will
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<PAGE> 47
result in FDA authorization to commence clinical trials, that the lack of an
objection means that the FDA will ultimately approve an application for
marketing approval, or that the Company will not encounter problems in clinical
trials that cause it or the FDA to delay, suspend or terminate such trials.
Clinical trials involve the administration of the investigational product
to humans under the supervision of a qualified principal investigator. Clinical
trials must be conducted in accordance with Good Clinical Practices ("GCP")
under protocols submitted to the FDA as part of the IND. In addition, each
clinical trial must be approved and conducted under the auspices of an
Institutional Review Board ("IRB") and with patient informed consent. The IRB
will consider, among other things, ethical factors, the safety of human subjects
and the possibility of liability of the institution conducting the trial.
Clinical trials are conducted in three sequential phases but the phases may
overlap. Phase I clinical trials may be performed in healthy human subjects or,
depending on the disease, in patients. The goal of a Phase I clinical trial is
to establish initial data about safety and tolerance of the biologic agent in
humans. In Phase II clinical trials, evidence is sought about the desired
therapeutic efficacy of a biologic agent in limited studies of patients with the
target disease. Efforts are made to evaluate the effects of various dosages and
to establish an optimal dosage level and dosage schedule. Additional safety data
are also gathered from these studies. The Phase III clinical trial program
consists of expanded, large-scale, multi-center studies of persons who are
susceptible to or have developed the disease. The goal of these studies is to
obtain definitive statistical evidence of the efficacy and safety of the
proposed product and dosage regimen.
As of March 1, 1998, ABX-CBL had only been administered to a total of 90
patients in GVHD and organ transplant rejection indications, and Phase I
clinical trials for ABX-IL8 in psoriasis commenced in April 1998. As a result,
patient follow up has been limited and clinical data obtained thus far are very
preliminary. In addition, the results of early clinical trials may not be
predictive of results obtained in later clinical trials, and there can be no
assurance that clinical trials conducted by the Company will demonstrate
sufficient safety and efficacy to obtain the requisite regulatory approvals or
will result in marketable products. If the Company's product candidates are not
shown to be safe and effective in clinical trials, the resulting delays in
developing other products and conducting related preclinical testing and
clinical trials, as well as the potential need for additional financing, would
have a material adverse effect on the Company's business, financial condition
and results of operations.
All data obtained from this comprehensive development program are submitted
in a BLA to the FDA for review and approval of the manufacture, marketing and
commercial shipment of the product. FDA approval of the BLA is required before
marketing may begin in the United States. All product candidates of the Company
will be subject to demanding and time consuming regulatory procedures in the
countries where the Company intends to market its products.
The process of obtaining approvals from the FDA can be costly, time
consuming and subject to unanticipated delays. The FDA may refuse to approve an
application if it believes that applicable regulatory criteria are not
satisfied. The FDA may also require additional testing for safety and efficiency
of the biopharmaceutical product. Moreover, if regulatory approval of a
biopharmaceutical product is granted, the approval will be limited to specific
indications. There can be no assurance that approvals of the Company's product
candidates, processes or facilities will be granted on a timely basis, if at
all. Any failure to obtain or delay in obtaining such approvals would have a
material adverse effect on the Company's business, financial condition and
results of operation.
Even if regulatory approvals for the Company's product candidates are
obtained, the Company, its products and the facilities manufacturing the
products are subject to continual review and periodic inspection. Domestic
manufacturing establishments are subject to preapproval and biennial inspections
by the FDA and must comply with the FDA's cGMP regulations. To supply
biopharmaceutical products for use in the United States, foreign manufacturing
establishments must comply with the FDA's cGMP regulations and are subject to
periodic inspection by the FDA or by regulatory authorities in those countries.
In complying with cGMP regulations, manufacturers must spend funds,
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<PAGE> 48
time and effort in the area of production and quality control to ensure full
technical compliance. The FDA stringently applies regulatory standards for
manufacturing.
For clinical investigation and marketing outside the United States, the
Company may be subject to the regulatory requirements of other countries, which
vary from country to country. The regulatory approval process in other countries
includes requirements similar to those associated with FDA approval set forth
above.
COMPETITION
The biotechnology and pharmaceutical industries are highly competitive and
subject to significant and rapid technological change. The Company is aware of
several pharmaceutical and biotechnology companies, which are actively engaged
in research and development in areas related to antibody therapy, that have
commenced clinical trials of antibody therapeutics products or have successfully
commercialized antibody products. Many of these companies are addressing
diseases and disease indications which are being targeted by the Company or its
collaborative partners. Certain of these competitors have specific expertise or
technology related to antibody development, such as Centocor, Inc., Protein
Design Labs, Inc., IDEC Pharmaceuticals Corporation, Cambridge Antibody
Technology Group, Inc. and GenPharm. Certain of the Company's competitors are
developing or testing product candidates that may be directly competitive with
the Company's product candidates. For example, the Company is aware that several
companies, including Genentech, Inc., have potential product candidates that may
inhibit the activity of IL-8. Furthermore, the Company is aware that ImClone
Systems, Inc. has a potential product candidate in clinical development that may
inhibit the activity of EGF. Many of these companies and institutions, either
alone or together with their corporate partners, have substantially greater
financial resources and larger research and development staffs than the Company.
In addition, many of these competitors, either alone or together with their
corporate partners, have significantly greater experience than the Company in
developing products, undertaking preclinical testing and human clinical trials,
obtaining FDA and other regulatory approvals of products and manufacturing and
marketing products. Accordingly, the Company's competitors may succeed in
obtaining patent protection, receiving FDA approval or commercializing products
more rapidly than the Company. If the Company commences commercial sales of
products, it will be competing against companies with greater marketing and
manufacturing capabilities, areas in which it has limited or no experience.
In addition to biotechnology and pharmaceutical companies, the Company
faces, and will continue to face, competition from academic institutions,
government agencies and research institutions. There are numerous competitors
working on products to treat each of the diseases for which the Company is
seeking to develop therapeutic products. In addition, any product candidate
successfully developed by the Company may compete with existing therapies that
have long histories of safe and effective use. Competition may also arise from
other drug development technologies and methods of preventing or reducing the
incidence of disease and new small molecule or other classes of therapeutic
agents. There can be no assurance that developments by others will not render
the Company's product candidates or technologies obsolete or noncompetitive. The
Company faces and will continue to face intense competition from other
companies, including Japan Tobacco, for collaborative arrangements with
pharmaceutical and biotechnology companies, for establishing relationships with
academic and research institutions, and for licenses to proprietary technology.
These competitors, either alone or with their corporate partners, may succeed in
developing technologies or products that are more effective than those of the
Company. The Company's collaborative partners may elect to develop other
antibody products which compete with the Company's products.
PHARMACEUTICAL PRICING AND REIMBURSEMENT
In both domestic and foreign markets, sales of the Company's potential
products will depend in part upon the availability of reimbursement from
third-party payors, such as government health administration authorities,
managed care providers, private health insurers and other organizations.
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These third-party payors are increasingly challenging the price and examining
the cost effectiveness of medical products and services. In addition,
significant uncertainty exists as to the reimbursement status of newly approved
healthcare products. There can be no assurance that the Company's product
candidates will be considered cost effective or that adequate third-party
reimbursement will be available to enable the Company to maintain price levels
sufficient to realize an appropriate return on its investment in product
development. Both federal and state governments in the United States and foreign
governments continue to propose and pass legislation designed to reduce the cost
of healthcare. Accordingly, legislation and regulations affecting the pricing of
pharmaceuticals may change before the Company's proposed products are approved
for marketing. Adoption of such legislation could further limit reimbursement
for pharmaceuticals. If adequate coverage and reimbursement rates are not
provided by the government and third-party payors for the Company's potential
products, the market acceptance of these products could be adversely affected,
which would have a material adverse effect on the Company's business, financial
condition and results of operations.
MANUFACTURING
The Company currently has limited experience in manufacturing its product
candidates and lacks the resources or capability to manufacture any of its
products on a commercial scale. While the Company currently manufactures limited
quantities of antibody products for preclinical testing, the Company relies on
contract manufacturers to produce ABX-CBL and ABX-IL8. With respect to products
other than ABX-CBL and ABX-IL8, the Company will either be responsible for
manufacturing or contract out manufacturing to third parties.
The Company's contract manufacturers have limited experience in
manufacturing ABX-CBL and ABX-IL8 in quantities sufficient for conducting
clinical trials. Contract manufacturers often encounter difficulties in scaling
up production, including problems involving production yields, quality control
and quality assurance and shortage of qualified personnel. Furthermore, there
are only a limited number of other third-party contract manufacturers who have
the ability and capacity to produce the Company's product candidates. Failure by
any contract manufacturer to deliver the required quantities of the Company's
product candidates for either clinical or commercial use on a timely basis and
at commercially reasonable prices and failure by the Company to find a
replacement manufacturer would have a material adverse affect on the Company's
business, financial condition and results of operations.
In addition, the Company and its third party manufacturers are required to
register their manufacturing facilities with the FDA and foreign regulatory
authorities. The facilities will then be subject to inspections confirming
compliance with cGMP established by the FDA or corresponding foreign
regulations. Failure to maintain compliance with the cGMP requirements would
materially adversely effect the Company's business, financial condition and
results of operations.
EMPLOYEES
As of March 31, 1998, Abgenix employed 57 persons, of whom 17 hold Ph.D. or
M.D. degrees and 8 hold other advanced degrees. Approximately 42 employees are
engaged in research and development, and 15 support business development,
intellectual property, finance and other administrative functions.
The Company's success will depend in large part upon its ability to attract
and retain employees. Abgenix faces competition in this regard from other
companies, research and academic institutions, government entities and other
organizations. The Company believes that it maintains good relations with its
employees.
FACILITIES
Abgenix is currently leasing 52,400 square feet of office and laboratory
facilities in Fremont, California. During 1997, the Company built out
approximately 42,000 square feet of laboratory and office space at the Fremont
site. The Company believes this facility, with potential additional build-outs,
will meet its space requirements for research and development and administration
for the next several years. The Company's lease expires in the year 2007 with
options to extend.
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LEGAL PROCEEDINGS
The Company is not a party to any legal proceedings.
SCIENTIFIC AND MEDICAL ADVISORY BOARDS
Abgenix has established Scientific and Medical Advisory Boards to provide
specific expertise in areas of research and development relevant to the
Company's business. The Scientific and Medical Advisory Boards meet periodically
with the Company's scientific and development personnel and management to
discuss the Company's present and long-term research and development activities.
Scientific and Medical Advisory Board members include:
<TABLE>
<S> <C>
Frederick Applebaum, M.D................. Director, Clinical Research Division,
Fred Hutchinson Cancer Research Center
Benedict Cosimi, M.D..................... Professor of Surgery, Harvard Medical
School and Chief of Transplant Unit,
Massachusetts General Hospital
Anthony DeFranco, M.D., Ph.D............. Professor, Biochemistry and Biophysics,
University of California, San Francisco
John Gallin, M.D......................... Director, Warren Grant Magnusen Clinical
Center, NIH
Raju S. Kucherlapati, Ph.D............... Professor and Chair, Molecular Genetics,
Albert Einstein College of Medicine
Michele Nussenswieg, M.D., Ph.D.......... Professor, Molecular Immunology
The Rockefeller University
Matthew Scharff, M.D..................... Professor of Medicine, Albert Einstein
College of Medicine
Lee Simon, M.D........................... Professor of Medicine, Harvard Medical
School
David Yocum, M.D......................... Professor of Medicine, University of
Arizona
</TABLE>
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MANAGEMENT
EXECUTIVE OFFICERS, DIRECTORS, AND KEY EMPLOYEES
The following table sets forth, as of March 31, 1998, certain information
concerning the Company's executive officers, directors and key employees:
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Executive Officers and Directors
R. Scott Greer......................... 39 President, Chief Executive Officer and Director
C. Geoffrey Davis, Ph.D................ 46 Vice President, Research
Kurt W. Leutzinger..................... 47 Vice President, Finance and Chief Financial Officer
John A. Lipani, M.D.................... 57 Vice President, Clinical Development
Raymond M. Withy, Ph.D................. 42 Vice President, Corporate Development
Stephen A. Sherwin, M.D.(1)(2)......... 49 Chairman of the Board
M. Kathleen Behrens, Ph.D.(1)(2)....... 45 Director
Raju S. Kucherlapati, Ph.D............. 55 Director
Mark B. Logan(1)(2).................... 59 Director
Joseph E. Maroun....................... 68 Director
Key Employees
Aya Jakobovits, Ph.D................... 45 Principal Scientist, Director of Discovery Research
Catherine Maynard...................... 33 Director of Operations
Rivka Sherman-Gold, Ph.D............... 49 Director of Business Development
John Ward.............................. 38 Director of MIS
</TABLE>
- ---------------
(1) Member of the Compensation Committee
(2) Member of the Audit Committee
R. Scott Greer has served as President and Chief Executive Officer and as a
director of Abgenix since June 1996. He also serves as a director of Xenotech.
From July 1994 to July 1996, Mr. Greer was Senior Vice President of Corporate
Development at Cell Genesys. From April 1991 to July 1994, Mr. Greer was Vice
President of Corporate Development and from April 1991 to September 1993 was
also Chief Financial Officer of Cell Genesys. From 1986 to 1991, Mr. Greer held
various positions at Genetics Institute, Inc., a biotechnology company,
including Director, Corporate Development. Mr. Greer received a B.A. in
economics from Whitman College and an M.B.A. from Harvard University and is a
certified public accountant.
C. Geoffrey Davis, Ph.D., has served as Vice President, Research of Abgenix
since June 1996. From January 1995 to June 1996, Dr. Davis was Director of
Immunology at the Xenotech Division of Cell Genesys. From November 1991 to
December 1994, he served at Repligen Corporation, a biotechnology company, first
as Principal Investigator and then as Director of Immunology. Dr. Davis received
a B.A. from Swarthmore College and a Ph.D. in immunology from the University of
California, San Francisco.
Kurt W. Leutzinger has served as Vice President, Finance and Chief
Financial Officer of Abgenix since July 1997. From June 1987 to July 1997, Mr.
Leutzinger was a Vice President of General Electric Investments and a portfolio
manager of the $27 billion General Electric Pension Fund responsible for private
equity investments with a focus on medical technology. He also serves as a
director of C3, Inc. Mr. Leutzinger received a B.A. in economics from Fairleigh
Dickenson University and an M.B.A. in finance from New York University and is a
certified public accountant.
John A. Lipani, M.D., has served as Vice President, Clinical Development of
Abgenix since April 1997. From 1992 to April 1997, Dr. Lipani was Group Director
of Inflammation and Tissue Repair
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<PAGE> 52
at SmithKline Beecham Corporation, a pharmaceutical company. From 1989 to 1992,
Dr. Lipani held clinical development positions at various biopharmaceutical
companies, including Immunex Corporation, Norwich Eaton Pharmaceuticals, Inc.
and Centocor, Inc. He received a B.A. from Villanova University and an M.D. from
Tulane Medical School.
Raymond M. Withy, Ph.D., has served as Vice President, Corporate
Development of Abgenix since June 1996. He also serves as a director of
Xenotech. From May 1993 to June 1996, Dr. Withy served in various positions at
Cell Genesys, most recently as Director of Business Development. From 1991 to
May 1993, Dr. Withy was a private consultant to the biotechnology industry in
areas of strategic planning, business development and licensing. From 1984 to
1991, Dr. Withy was an Associate Director and Senior Scientist at Genzyme
Corporation, a biotechnology company. Dr. Withy received a B.Sc. in chemistry
and biochemistry and a Ph.D. in biochemistry, both from the University of
Nottingham.
Stephen A. Sherwin, M.D., has served as Chairman of the Board of Abgenix
since June 1996. Since March 1990, Dr. Sherwin has served as President, Chief
Executive Officer and as a director of Cell Genesys. Since March 1994, he has
served as Chairman of the Board of Cell Genesys. From 1983 to 1990, Dr. Sherwin
held various positions at Genentech, Inc., a biotechnology company, most
recently as Vice President, Clinical Research. Dr. Sherwin currently serves as a
Director of the California Healthcare Institute. Dr. Sherwin received a B.A. in
biology from Yale University and an M.D. from Harvard Medical School.
M. Kathleen Behrens, Ph.D., has served as a director of Abgenix since
December 1997. Dr. Behrens joined Robertson Stephens Investment Management Co.
in 1983 and became a general partner in 1986 and a managing director in 1993. In
1988, Dr. Behrens joined the venture capital group of Robertson Stephens
Investment Management Co. and has helped in the founding of three biotechnology
companies: Mercator Genetics, Inc., Protein Design Laboratories, Inc. and COR
Therapeutics, Inc. Dr. Behrens is currently president-elect and a director of
the National Venture Capital Association. Dr. Behrens received a Ph.D. in
microbiology from the University of California, Davis, where she performed
genetic research for six years.
Raju S. Kucherlapati, Ph.D., has served as a director of Abgenix since June
1996. Dr. Kucherlapati was a founder of Cell Genesys and has served as a
director of Cell Genesys since 1988. Since July 1989, he has been the Saul and
Lola Kramer Professor and the Chairman of the Department of Molecular Genetics
at the Albert Einstein College of Medicine. Dr. Kucherlapati also serves as a
director of Megabios Corp. and Millennium Pharmaceuticals, Inc. Dr. Kucherlapati
received a B.S. in biology from Andhra University in India and a Ph.D. in
genetics from the University of Illinois, Urbana.
Mark B. Logan has served as a director of Abgenix since August 1997. Mr.
Logan has served as Chairman of the Board, President and Chief Executive Officer
of VISX, Incorporated, a medical device company, since November 1994. From
January 1992 to October 1994, he was Chairman of the Board and Chief Executive
Officer of INSMED Pharmaceuticals, Inc., a pharmaceutical company. Previously,
Mr. Logan held several senior management positions at Bausch & Lomb, Inc., a
medical products company, including Senior Vice President, Healthcare and
Consumer Group and also served as a member of its Board of Directors. Mr. Logan
received a B.A. from Hiram College and a PMD from Harvard Business School.
Joseph E. Maroun has served as a director of Abgenix since July 1996 and
has served as a director of Cell Genesys since June 1995. Mr. Maroun spent 30
years with Bristol-Myers Squibb, a pharmaceuticals company, serving until his
retirement in 1990, at which time he was President of the International Group,
Senior Vice President of the corporation, and a member of its Policy Committee.
He also headed the U.S.-Japan Pharmaceutical Advisory Group. Mr. Maroun received
a B.A. from the University of Witwaterrand, Johannesburg.
Aya Jakobovits, Ph.D., has served as Principal Scientist and Director of
Discovery Research of Abgenix since June 1996. From January 1994 to June 1996,
Dr. Jakobovits was Director of Molecular Immunology at Cell Genesys. From
October 1989 to January 1994, Dr. Jakobovits served as Scientist
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<PAGE> 53
and then as Senior Scientist at Cell Genesys. Dr. Jakobovits received a B.Sc.
from the Hebrew University of Jerusalem, Israel, a M.Sc. in chemistry and a
Ph.D. in life sciences, both from the Weizmann Institute of Science, Israel.
Catherine Maynard has served as Director of Operations of Abgenix since
January 1998. From June 1996 to January 1998, Ms. Maynard was Associate
Director, Animal Research Services and Microembryology at the Company. From 1992
to June 1996, Ms. Maynard worked at Cell Genesys in various positions, most
recently as Associate Director, Animal Research Services and Microembryology.
From 1988 to 1992, Ms. Maynard was Manager of the Core Transgenic Services at
Imperial Cancer Research Fund. Ms. Maynard received a B.Sc. from the University
of Manchester, U.K.
Rivka Sherman-Gold, Ph.D., has served as Director of Business Development
of Abgenix since October 1996. From September 1993 to October 1996, Dr.
Sherman-Gold was Associate Director of Business Development at Athena
Neurosciences, Inc., a biotechnology company. Dr. Sherman-Gold received a B.Sc.
in chemistry and an M.Sc. in biophysics and physiology, both from the Technion,
Israel Institute of Technology, a Ph.D. in life sciences from the Weizmann
Institute of Science, Israel and an M.B.A. from California State University in
San Jose.
John Ward has served as Director of MIS of Abgenix since November 1996.
From January 1996 to November 1996, Mr. Ward was Department Manager, Distributed
Computing Department at Bechtel Nevada, a construction and engineering firm.
From July 1988 to December 1995, he held various MIS positions at EG&G Energy
Measurements, an engineering and management company. Mr. Ward received a B.S. in
computer information systems from Arizona State University.
COMMITTEES OF THE BOARD OF DIRECTORS
The Compensation Committee consists of Dr. Sherwin, Mr. Logan and Dr.
Behrens. The Compensation Committee makes recommendations regarding the
Company's various incentive compensation and benefit plans and determines
salaries for the executive officers and incentive compensation for employees and
consultants of the Company.
The Audit Committee consists of Dr. Sherwin, Mr. Logan and Dr. Behrens. The
Audit Committee makes recommendations to the Board of Directors regarding the
selection of independent auditors, reviews the results and scope of the audit
and other services provided by the Company's independent auditors and reviews
and evaluates the Company's control functions.
BOARD COMPOSITION
The Company's Bylaws provide that the number of members of the Company's
Board of Directors shall be determined by the Board of Directors. The number of
directors is currently set at seven. All members of the Company's Board of
Directors hold office until the next annual meeting of stockholders or until
their successors are duly elected and qualified. There are no family
relationships among any of the directors, officers or key employees of the
Company.
Cell Genesys and the Company have entered into the Governance Agreement
which provides that so long as Cell Genesys or a group to which it belongs owns
(i) a majority of the outstanding voting stock of the Company, Cell Genesys or
the group shall have the right to nominate four out of the seven directors of
the Company, (ii) less than a majority but greater than 25% of the outstanding
voting stock of the Company, then Cell Genesys or such group shall have the
right to nominate three out of the seven directors of the Company, or (iii) less
than 25% but greater than 15% of the outstanding voting stock of the Company,
then Cell Genesys or such group shall have the right to nominate one out of the
seven directors of the Company. The Governance Agreement also provides that Cell
Genesys and each officer and director of the Company who owns voting stock shall
agree to vote for the persons nominated by Cell Genesys or the group to which it
belongs as set forth above. See "Risk Factors -- Significant Influence by Cell
Genesys, Inc."
52
<PAGE> 54
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
None of the members of the Compensation Committee was, at any time since
the formation of the Company, an officer or employee of the Company. No
executive officer of the Company serves as a member of the board of directors or
compensation committee of any entity that has one or more executive officers
serving as a member of the Company's Board of Directors or Compensation
Committee. See "Certain Transactions" for a description of transactions between
the Company and entities affiliated with members of the Compensation Committee.
DIRECTOR COMPENSATION
Directors do not currently receive any cash compensation from the Company
for their service as members of the Board of Directors, although they are
reimbursed for certain expenses in connection with attendance at Board and
Committee meetings. The Company does not provide additional compensation for
Committee participation or special assignments of the Board of Directors. From
time to time, certain directors of the Company have received grants of options
to purchase shares of the Company's Common Stock pursuant to the 1996 Incentive
Stock Plan. On June 4, 1997, R. Scott Greer, Stephen A. Sherwin, Raju S.
Kucherlapati and Joseph E. Maroun received options to purchase 67,500, 10,000,
7,500, and 7,500 shares of the Company's Common Stock, respectively, at a per
share exercise price of $2.50. On August 8, 1997, Mark B. Logan received an
option to purchase 30,000 shares of the Company's Common Stock at a per share
exercise price of $4.00. On December 11, 1997, Raju S. Kucherlapati received an
option to purchase 20,000 shares of the Company's Common Stock at a per share
exercise price of $5.00. There were no other director option grants in 1997. On
February 18, 1998, R. Scott Greer, Stephen A. Sherwin, M. Kathleen Behrens, Raju
S. Kucherlapati, Mark B. Logan and Joseph E. Maroun received options to purchase
40,000, 5,900, 30,000, 4,400, 3,200 and 4,400 shares of the Company's Common
Stock, respectively, at a per share exercise price of $6.00. Beginning after the
date of this offering, nonemployee directors of the Company will be eligible to
receive nondiscretionary, automatic grants of options to purchase shares of the
Company's Common Stock pursuant to the 1998 Director Option Plan. See "-- Stock
Plans -- 1998 Director Option Plan" and "Certain Transactions."
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<PAGE> 55
EXECUTIVE COMPENSATION
The following table sets forth the compensation paid by the Company during
the year ended December 31, 1997 to the President and Chief Executive Officer
and to the Company's four other most highly compensated executive officers, each
of whose aggregate compensation during the Company's last fiscal year exceeded
$100,000 (the "Named Executive Officers"):
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM
COMPENSATION
AWARDS
------------
ANNUAL COMPENSATION SECURITIES
-------------------- UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION SALARY BONUS OPTIONS COMPENSATION
--------------------------- -------- -------- ------------ ------------
<S> <C> <C> <C> <C>
R. Scott Greer............................ $252,000 $ 55,200 67,500 $ 4,112(1)
President and Chief Executive Officer
C. Geoffrey Davis, Ph.D................... 152,250 21,750 25,500 1,974(2)
Vice President, Research
Kurt W. Leutzinger(3)..................... 81,555 -- 100,000 127,059(4)
Vice President, Finance and Chief
Financial Officer
John A. Lipani, M.D.(5)................... 131,250 -- 100,000 64,585(6)
Vice President, Clinical Development
Raymond M. Withy, Ph.D.................... 152,250 21,750 25,500 --
Vice President, Corporate Development
</TABLE>
- ---------------
(1) Consists of imputed interest income on a loan from the Company to Mr. Greer.
(2) Consists of imputed interest income on a loan from the Company to Dr. Davis.
(3) Mr. Leutzinger has been the Company's Vice President, Finance and Chief
Financial Officer since July 1997. His 1997 annualized salary is $175,000.
(4) Consists of $126,568 for reimbursement of relocation expenses and $491 for
imputed interest income on a loan from the Company to Mr. Leutzinger.
(5) Dr. Lipani has been the Company's Vice President, Clinical Development since
April 1997. His 1997 annualized salary is $175,000.
(6) Consists of $63,232 for reimbursement of relocation expenses and $1,353 for
imputed interest income on a loan from the Company to Dr. Lipani.
STOCK OPTION GRANTS
The following table provides information relating to stock options awarded
to each of the Named Executive Officers during the year ended December 31, 1997.
All such options were awarded under the Company's 1996 Incentive Stock Plan.
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS POTENTIAL REALIZABLE
-------------------------------------------------- VALUE AT ASSUMED
NUMBER OF PERCENT OF ANNUAL RATES OF STOCK
SECURITIES TOTAL OPTIONS PRICE APPRECIATION
UNDERLYING GRANTED FOR OPTIONS TERM(4)
OPTIONS IN FISCAL EXERCISE EXPIRATION -----------------------
NAME GRANTED(1) 1997(2) PRICE(3) DATE 5% 10%
- ---- ---------- ------------- -------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
R. Scott Greer................ 67,500 10.0% $2.50 6/1/07 $1,040,704 $1,757,104
C. Geoffrey Davis, Ph.D....... 25,500 3.8 2.50 6/1/07 393,155 663,795
Kurt W. Leutzinger............ 100,000 14.8 2.50 6/26/07 1,541,784 2,603,117
John A. Lipani, M.D........... 100,000 14.8 0.60 2/12/07 1,731,784 2,793,117
Raymond M. Withy, Ph.D........ 25,500 3.8 2.50 6/1/07 393,155 663,795
</TABLE>
- ---------------
(1) The options granted to Mr. Greer and Drs. Davis and Withy became exercisable
as to 1/48th of the option shares on the date of grant and an additional
1/48th of the option shares become exercisable on the first day of each
calendar month thereafter, with full vesting occurring four years after the
date of grant. The options granted to Mr. Leutzinger and Dr. Lipani become
exercisable as to 25% of the option shares one year from the date of grant
and 1/48th of the option shares become exercisable
54
<PAGE> 56
on the first day of each calendar month thereafter, with full vesting
occurring four years after the date of grant. In each case, vesting is
subject to the optionee's continued relationship with the Company. Such
options expire ten years from the date of grant, or earlier upon termination
of employment. See "Stock Plans."
(2) Based on an aggregate of 676,644 options granted by the Company in the year
ended December 31, 1997 to employees, non-employee directors of and
consultants to the Company, including the Named Executive Officers.
(3) Options were granted at an exercise price equal to the fair market value of
the Company's Common Stock, as determined by the Board of Directors on the
date of grant.
(4) The 5% and 10% assumed annual rates of compounded stock price appreciation
are mandated by rules of the Securities and Exchange Commission. There can
be no assurance provided to any executive officer or any other holder of the
Company's securities that the actual stock price appreciation over the
option term will be at the assumed 5% and 10% levels or at any other defined
level. Unless the market price of the Common Stock appreciates over the
option term, no value will be realized from the option grants made to the
executive officers. The potential realizable value is calculated by assuming
that the assumed initial public offering price of $11.00 per share
appreciates at the indicated rate for the entire term of the option and that
the option is exercised at the exercise price and sold on the last day of
its term at the appreciated price. The potential realizable value
computation is net of the applicable exercise price, but does not take into
account applicable federal or state income tax consequences and other
expenses of option exercises or sales of appreciated stock.
AGGREGATE OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION VALUES
The following table sets forth for each of the Named Executive Officers the
number of shares of Common Stock acquired and the dollar value realized upon
exercise of options during the year ended December 31, 1997 and the number and
value of securities underlying unexercised options held at December 31, 1997:
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS AT IN-THE-MONEY OPTIONS AT
SHARES DECEMBER 31, 1997 DECEMBER 31, 1997(1)
ACQUIRED VALUE --------------------------- ---------------------------
NAME ON EXERCISE REALIZED(1) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
R. Scott Greer............ 107,240 $1,096,592 -- 235,260 -- $2,337,158
C. Geoffrey Davis,
Ph.D. .................. -- -- 39,136 86,364 $399,948 856,802
Kurt W. Leutzinger........ -- -- -- 100,000 -- 850,000
John A. Lipani, M.D. ..... -- -- -- 100,000 -- 1,040,000
Raymond M. Withy, Ph.D. .. 10,000 104,000 29,136 86,364 295,948 856,802
</TABLE>
- ---------------
(1) Value realized and value of unexercised in-the-money options are based on a
value of $11.00 per share, the assumed initial public offering price.
Amounts reflected are based on the value per share, minus the per share
exercise price, multiplied by the number of shares acquired on exercise or
underlying the option.
STOCK PLANS
1996 Incentive Stock Plan. As of March 31, 1998, a total of 2,891,250
shares of Common Stock have been authorized for issuance under the Company's
1996 Incentive Stock Plan (the "1996 Plan"). Under the 1996 Plan, as of March
31, 1998, options to purchase an aggregate of 1,702,904 shares were outstanding,
293,160 shares of Common Stock had been purchased pursuant to exercises of stock
options and stock purchase rights and 895,186 shares were available for future
grant.
The 1996 Plan provides for the grant of incentive stock options within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), nonqualified stock options and stock purchase rights to employees,
consultants and nonemployee directors of the Company. Incentive stock options
may be granted only to employees. The 1996 Plan is administered by the Board of
Directors or a committee appointed by the Board of Directors, which determines
the terms of awards granted, including the exercise price and the number of
shares subject to the award and the exercisability thereof. The exercise price
of incentive stock options granted under the 1996 Plan must be at least equal to
the fair market value of the Company's Common Stock on the date of grant.
However, for any employee holding more than 10% of the voting power of all
classes of the Company's stock, the exercise price will be no less than 110% of
the fair market value. The exercise price of nonqualified stock options is set
by the administrator of the 1996 Plan. However, for any person holding more than
10% of the voting power of all classes of the Company's stock, the exercise
price will be no less than 110% of the fair market value. The maximum term of
options granted under the 1996 Plan is ten years.
55
<PAGE> 57
An optionee whose relationship with the Company or any related corporation
ceases for any reason (other than by death or total and permanent disability)
may exercise options in the three-month period following such cessation, or such
other period of time as determined by the administrator, unless such options
terminate or expire sooner (or for nonstatutory stock options, later), by their
terms. The three-month period is extended to twelve months for terminations due
to death or total and permanent disability. In the event of a merger of the
Company with or into another corporation, any outstanding options may either by
assumed or an equivalent option may be substituted by the surviving entity or,
if such options are not assumed or substituted, such options shall become
exercisable as to all of the shares subject to the options, including shares as
to which they would not otherwise be exercisable. In the event that options
become exercisable in lieu of assumption or substitution, the Board of Directors
shall notify optionees that all options shall be fully exercisable for a period
of 30 days, after which such options shall terminate.
No employee may be granted, in any fiscal year of the Company, options to
purchase more than 750,000 shares (or 1,500,000 shares in the case of a new
employee's initial employment with the Company). The 1996 Plan will terminate in
June 2006, unless sooner terminated by the Board of Directors.
The Board of Directors may also grant stock purchase rights to employees
and consultants under the 1996 Plan. Such grants are made pursuant to a
restricted stock purchase agreement with the price to be paid for the shares
granted thereunder being determined by the administrator. The Company is
generally granted a repurchase option exercisable on the voluntary or
involuntary termination of the purchaser's employment with the Company for any
reason (including death or disability). The repurchase price shall be the
original purchase price paid by the purchaser. The repurchase option shall lapse
at a rate determined by the administrator. Once the stock purchase right has
been exercised, the purchaser shall have the rights equivalent to those of a
stockholder.
1998 Employee Stock Purchase Plan. The Company has adopted a 1998 Employee
Stock Purchase Plan (the "Purchase Plan"), and has reserved a total of 250,000
shares of Common Stock for issuance thereunder. The Purchase Plan also provides
for an annual increase, commencing in 1999, in the number of shares reserved for
issuance under the Purchase Plan equal to the lesser of 250,000, 1% of the
Company's outstanding capitalization or a lesser amount determined by the Board
(such that the maximum number of shares which could be reserved under the
Purchase Plan over its term would be 2,500,000 shares). No shares have been
issued under the Purchase Plan to date. The Purchase Plan, which is intended to
qualify under Section 423 of the Code will be administered by the Board of
Directors of the Company or by a committee appointed by the Board of Directors.
Under the Purchase Plan, the Company will withhold a specified percentage (not
to exceed 15%) of each salary payment to participating employees over certain
offering periods. Any employee who is currently employed for at least 20 hours
per week and for at least five consecutive months in a calendar year, either by
the Company or by a majority-owned subsidiary of the Company, will be eligible
to participate in the Purchase Plan. Unless the Board of Directors or the
committee determines otherwise, each offering period will run for 24 months and
will be divided into consecutive purchase periods of approximately six months.
The first offering period and the first purchase period will commence on the
date of this Prospectus. Thereafter, new 24 month offering periods will commence
every six months on each November 1 and May 1. In the event of a change in
control of the Company, including a merger of the Company with or into another
corporation, or the sale of all or substantially all of the assets of the
Company, the offering and purchase periods then in progress will be shortened.
The price of Common Stock purchased under the Purchase Plan will be equal to 85%
of the fair market value of the Common Stock on the first day of the applicable
offering period or the last day of the applicable purchase period, whichever is
lower. Employees may end their participation in the offering at any time during
the offering period, and participation ends automatically on termination of
employment with the Company. The maximum number of shares that a participant may
purchase on the last day of any offering period is determined by dividing the
payroll deductions accumulated during the purchase period by the purchase price.
However, no person may purchase shares under the Purchase Plan to the
56
<PAGE> 58
extent such person would own 5% or more of the total combined value or voting
power of all classes of the capital stock of the Company or of any of its
subsidiaries, or to the extent that such person's rights to purchase stock under
all employee stock purchase plans would exceed $25,000 for any calendar year.
The Board of Directors may amend the Purchase Plan at any time. The Purchase
Plan will terminate in March 2008, unless terminated earlier in accordance with
the provisions of the Purchase Plan.
1998 Director Option Plan. The Company has adopted a 1998 Director Option
Plan (the "Director Plan"), and has reserved a total of 250,000 shares of Common
Stock for issuance thereunder. Each nonemployee director who becomes a director
of the Company after the date of this offering will be automatically granted a
nonstatutory option to purchase 30,000 shares of Common Stock on the date on
which such person first becomes a director (the "Initial Grant"). At each annual
stockholders meeting beginning with the 1999 Annual Stockholders Meeting, each
nonemployee director will automatically be granted a nonstatutory option to
purchase 7,500 shares of Common Stock (10,000 shares for the Chairman of the
Board if a nonemployee director) (the "Subsequent Grant"). The exercise price of
options under the Director Plan will be equal to the fair market value of the
Common Stock on the date of grant. The maximum term of the options granted under
the Director Plan is ten years. Each Initial Grant under the Director Plan will
vest as to 25% of the shares subject to the option one year after the date of
grant and at a rate of 1/48th of the shares each month thereafter. Each
Subsequent Grant will vest as to 1/48th of the shares subject to the option one
month after the date of grant and at a rate of 1/48th of the shares on the last
day of each month thereafter. In the event of a merger of the Company with or
into another corporation, all outstanding options may either by assumed or an
equivalent option may be substituted by the surviving entity or, if such options
are not assumed or substituted, such options shall become exercisable as to all
of the shares subject to the options, including shares as to which they would
not otherwise be exercisable. In the event that options become exercisable in
lieu of assumption or substitution, the Board of Directors shall notify
optionees that all options shall be fully exercisable for a period of 30 days,
after which such options shall terminate. In the event that a
nonemployee-director is involuntarily terminated following option assumption,
such option becomes fully vested and exercisable. The Director Plan will
terminate in March 2008, unless terminated earlier in accordance with the
provisions of the Director Plan.
401(k) PLAN
The Company's employees who are located in the United States and have been
employed by the Company for three months or more are covered by Cell Genesys'
Retirement Savings and Investment Plan (the "401(k) Plan"). The 401(k) Plan will
cover the Company's eligible employees so long as Cell Genesys owns 50% or more
of the Company's outstanding Common Stock. Pursuant to the 401(k) Plan,
employees may elect to reduce their current compensation by up to the lesser of
15% of their annual compensation or the statutorily prescribed annual limit
allowable under Internal Revenue Service Regulations and to have the amount of
such reduction contributed to the 401(k) Plan. The 401(k) Plan permits, but does
not require, additional matching contributions by the Company on behalf of all
participants in the 401(k) Plan. The Company has not made any contributions to
the 401(k) Plan. The 401(k) Plan is intended to qualify under Section 401(k) of
the Code so that contributions to the 401(k) Plan by employees or by the
Company, and the investment earnings thereon, are not taxable to employees until
withdrawn from the 401(k) Plan, and that contributions by the Company, if any,
will be deductible by the Company when made. At such time as Cell Genesys'
equity ownership in the Company drops below 50%, the Company's employees will
not be eligible to participate in Cell Genesys' 401(k) Plan and the Company
intends to implement its own retirement savings and investment plan.
CHANGE IN CONTROL ARRANGEMENTS
The Company's Board of Directors has approved a plan which provides that in
the event of a change in control of the Company, the options of each employee of
the Company whose employment
57
<PAGE> 59
is terminated without cause within 24 months of the change in control shall be
exercisable in full. For this purpose, a change in control includes: (i) a
person becoming the beneficial owner of 50% or more of the Company's outstanding
voting securities, (ii) certain changes in the composition of the Board of
Directors occurring within a two year period or (iii) a merger or consolidation
of the Company in which the stockholders of the Company immediately before the
transaction own immediately after the transaction less than a majority of the
outstanding voting securities of the surviving entity (or its parent).
LIMITATIONS OF LIABILITY AND INDEMNIFICATION MATTERS
The Company's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be personally liable for monetary
damages for breach of their fiduciary duties as directors, except liability for
(i) any breach of their duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) unlawful payments of dividends or unlawful
stock repurchases or redemptions, or (iv) any transaction from which the
director derived an improper personal benefit. Such limitation of liability does
not apply to liabilities arising under the federal securities laws and does not
affect the availability of equitable remedies such as injunctive relief or
rescission.
The Company's Bylaws provide that the Company shall indemnify its directors
and executive officers and may indemnify its other officers and employees and
other agents to the fullest extent permitted by law. The Company believes that
indemnification under its Bylaws covers at least negligence and gross negligence
on the part of indemnified parties. The Company's Bylaws also permit it to
secure insurance on behalf of any officer, director, employee or other agent for
any liability arising out of his or her actions in such capacity, regardless of
whether the Bylaws would permit indemnification.
The Company has entered into agreements to indemnify its directors and
executive officers, in addition to indemnification provided for in the Company's
Bylaws. These agreements, among other things, indemnify the Company's directors
and executive officers for certain expenses (including attorneys' fees),
judgments, fines and settlement amounts incurred by any such person in any
action or proceeding, including any action by or in the right of the Company
arising out of such person's services as a director or executive officer of the
Company, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the request of the Company. The Company
believes that these provisions and agreements are necessary to attract and
retain qualified persons as directors and executive officers.
58
<PAGE> 60
CERTAIN TRANSACTIONS
Incorporation and Organization of Abgenix. Pursuant to the terms of the
Stock Purchase and Transfer Agreement (the "Agreement") between Abgenix and Cell
Genesys, Abgenix issued 1,691,667 shares of Series A Senior Convertible
Preferred Stock to Cell Genesys in exchange for $10 million, and 2,058,333
shares of Series 1 Subordinated Convertible Preferred Stock to Cell Genesys, and
in exchange, Cell Genesys contributed research, development and manufacturing
technology, patents and other intellectual property specific to the antibody
therapy programs to be pursued by Abgenix, including Cell Genesys' interest in
Xenotech, and certain equipment, furniture and fixtures leased by Cell Genesys.
Abgenix is responsible for the remaining lease obligations for such capital
equipment which total approximately $38,000 per month. Cell Genesys also
assigned to the Company two notes receivable totaling $150,000.
On July 15, 1996, the Registrant, in exchange for a loan in the principal
amount of up to $4,000,000, issued a Convertible Promissory Note to Cell Genesys
that subsequently was converted into 666,667 shares of Series A Preferred Stock
at a conversion price of $6.00 upon the closing of the Series B Preferred Stock
Financing in December 1997 (see "Preferred Stock Financings").
Simultaneously with the execution of the Agreement, Abgenix and Cell
Genesys entered into a Governance Agreement, Tax Sharing Agreement, Services
Agreement and Patent Assignment Agreement. In addition, Abgenix and Cell Genesys
entered into an Immunization Services Agreement, Gene Therapy Agreement and
Voting Agreement. The Immunization Services Agreement, Gene Therapy Agreement
and Voting Agreement were superseded by the Gene Therapy Rights Agreement. See
"Business -- Corporate Arrangements."
The Governance Agreement provides that so long as Cell Genesys or a group
to which it belongs owns (i) a majority of the outstanding voting stock of
Abgenix, Cell Genesys or the group shall have the right to nominate four out of
the seven directors of the Company, (ii) less than a majority but greater than
25% of the outstanding voting stock of Abgenix, then Cell Genesys or such group
shall have the right to nominate three out of the seven directors of the
Company, or (iii) less than 25% but greater than 15% of the outstanding voting
stock of Abgenix, then Cell Genesys or such group shall have the right to
nominate one out of the seven directors of the Company. The Governance Agreement
also provides that Cell Genesys and each officer and director of Abgenix who
owns voting stock shall agree to vote for the persons nominated as set forth
above.
The Tax Sharing Agreement (the "Tax Agreement") provides for the allocation
of federal and state tax liabilities between Abgenix and Cell Genesys. Pursuant
to the terms of the Tax Agreement, Abgenix will pay to Cell Genesys the federal
and state income and franchise tax liability that Abgenix would have owed if it
had filed separate returns. If Abgenix realizes a loss or credit that reduces
the consolidated tax liability of Cell Genesys, then Cell Genesys shall pay
Abgenix the amount of the reduction. The Tax Agreement shall remain in effect
with respect to any taxable year for which consolidated or combined returns are
filed by Cell Genesys as a common parent corporation and such party is an
includable party in such consolidated return.
Pursuant to the terms of the Services Agreement, Cell Genesys provided
certain administrative services for a quarterly fee. In fiscal 1997, these fees
totaled $60,000.
Pursuant to the terms of the Patent Assignment Agreement, Cell Genesys
assigned to Abgenix all of its rights in and to certain patents and patent
applications related to antibody development.
Other Transactions with Cell Genesys. On January 23, 1997 and March 27,
1997, the Company issued two warrants to purchase an aggregate of 121,667 shares
of Series A Preferred Stock (convertible into 121,667 shares of Common Stock) to
Cell Genesys at the exercise price per share of $6.00 in return for providing
guarantees for the Loan and Security Agreement with Silicon Valley Bank and the
Master Lease Agreement with Transamerica Business Credit Corporation.
59
<PAGE> 61
In October 1997, Cell Genesys extended a short-term, convertible line of
credit facility (the "LOC") to Abgenix. The LOC terminated in accordance with
its terms, without Abgenix drawing upon the LOC, upon the closing of the Series
B Preferred Stock financing in December 1997.
BancAmerica Robertson Stephens Relationship. M. Kathleen Behrens, Ph.D. a
director of the Company, is also a managing director of Robertson Stephens
Investment Management Co. BancAmerica Robertson Stephens acted as one of the
Company's placement agents in the Series B Preferred Stock financing in December
1997. BancAmerica Robertson Stephens received approximately $759,000 in fees for
services provided in the private placement. Also, persons and entities
affiliated with BancAmerica Robertson Stephens purchased, in the aggregate,
784,616 shares of the Series B Preferred Stock for an aggregate purchase price
of approximately $5.1 million. BancAmerica Robertson Stephens is also serving as
one of the underwriters in this offering.
Preferred Stock Financings. The holders of Preferred Stock include, among
others, the following directors and holders of more than 5% of the Company's
outstanding stock:
<TABLE>
<CAPTION>
PREFERRED STOCK
---------------------
PREFERRED STOCKHOLDER SERIES A SERIES B
--------------------- --------- --------
<S> <C> <C>
Cell Genesys, Inc.(1)....................................... 4,538,334 --
Robertson Stephens Investment Management Co. Entities(2).... -- 769,231
S-E Banken Entities(3)...................................... -- 461,532
Stephen A. Sherwin, M.D.(4)................................. 4,538,334 --
M. Kathleen Behrens, Ph.D.(5)............................... -- 784,616
Raju Kucherlapati, Ph.D.(6)................................. 4,538,334 10,000
Joseph E. Maroun(7)......................................... 4,538,334 153,846
</TABLE>
- ---------------
(1) Includes 121,667 shares issuable pursuant to outstanding warrants to
purchase Series A Preferred Stock.
(2) Includes 56,280 shares held by Bayview Investors, LTD, 224,145 shares held
by Crossover Fund II, L.P., 67,663 shares held by Crossover Fund IIA, L.P.,
334,079 shares held by Omega Ventures II, L.P., 87,064 shares held by Omega
Ventures II Cayman, L.P. (collectively, the "Robertson Stephens Investment
Management Co. Shares"). Each of the above entities is affiliated with
Robertson Stephens Investment Management Co.
(3) Includes 392,305 shares held by S-E Banken -- Lakemedelsfond and 69,227
shares held by S-E Banken -- Luxembourg S.A.
(4) Includes 4,416,667 shares held by Cell Genesys and 121,667 shares issuable
pursuant to outstanding warrants to purchase Series A Preferred Stock
(collectively, the "Cell Genesys Owned Shares"). Dr. Sherwin is an officer,
director and beneficial stockholder of Cell Genesys, Inc. As such, he may be
deemed to have voting and dispositive power over the Cell Genesys Owned
Shares. However, Dr. Sherwin disclaims beneficial ownership of the Cell
Genesys Owned Shares except to the extent of his pro rata pecuniary interest
therein.
(5) Includes the Robertson Stephens Investment Management Co. Shares. Dr.
Behrens, a managing director of Robertson Stephens Investment Management
Co., disclaims beneficial ownership of the shares of the Company held by the
Robertson Stephens Investment Management Co. Entities except to the extent
of her pro rata pecuniary interest therein.
(6) Includes the Cell Genesys Owned Shares. Dr. Kucherlapati is a director and
beneficial stockholder of Cell Genesys. As such, he may be deemed to have
voting power over the Cell Genesys Owned Shares. However, Dr. Kucherlapati
disclaims beneficial ownership of the Cell Genesys Owned Shares except to
the extent of his pecuniary interest therein.
(7) Includes the Cell Genesys Owned Shares. Mr. Maroun is a director and
beneficial stockholder of Cell Genesys. As such, he may be deemed to have
voting and dispositive power over the Cell Genesys Owned Shares. However,
Mr. Maroun disclaims beneficial ownership of the Cell Genesys Owned Shares
except to the extent of his pro rata pecuniary interest therein.
In connection with, and contemporaneous to, the Series B Preferred Stock
financing the shares of Series A Senior Convertible Preferred Stock, the shares
of Series 1 Subordinated Convertible Preferred Stock and the Convertible
Promissory Note issued to Cell Genesys in July 1996 (see above) were all
converted into an aggregate 4,416,667 shares of Series A Preferred Stock.
Holders of Preferred Stock are entitled to certain registration rights with
respect to the Common Stock issued or issuable upon conversion thereof. See
"Description of Capital Stock -- Registration Rights."
After the completion of this offering, Cell Genesys will beneficially own
approximately 40.3% of the outstanding capital stock. As a result, Cell Genesys
will have significant influence over all matters
60
<PAGE> 62
requiring the approval of the Company's stockholders, including the election of
the Company's Board of Directors. See "Risk Factors -- Significant Influence by
Cell Genesys, Inc."
Three of the Company's directors, Stephen A. Sherwin, M.D., Raju S.
Kucherlapati, Ph.D. and Joseph E. Maroun are also directors of Cell Genesys. Dr.
Sherwin is also the Chairman of the Board and Chief Executive Officer of Cell
Genesys. See above for a description of transactions with Cell Genesys.
Transactions with Employees. On May 27, 1997, John A. Lipani, M.D. the
Company's Vice President, Clinical Development, and Abgenix entered into a
Relocation Loan Agreement pursuant to which Abgenix loaned $100,000 to Dr.
Lipani in exchange for a promissory note secured by a deed of trust. No interest
accrues on the loan until May 27, 2002. The outstanding principal balance as of
December 31, 1997 was $100,000. In addition, Dr. Lipani received a $35,000 loan
from Abgenix to assist with relocation expenses. The $35,000 loan, which is
evidenced by a promissory note, will be forgiven in full once Dr. Lipani
completes 12 months of employment.
On December 2, 1992, R. Scott Greer, the Company's President and Chief
Executive Officer, and Cell Genesys entered into a Relocation Loan Agreement
pursuant to which Cell Genesys loaned $100,000 to Mr. Greer in exchange for an
interest free promissory note secured by shares of Cell Genesys' Common Stock
owned by Mr. Greer. In June 1996, Cell Genesys assigned its rights under the
promissory note to the Company. Mr. Greer repaid the entire loan to the Company
in September 1997.
On April 21, 1995, C. Geoffrey Davis, Ph.D. the Company's Vice President,
Research, and Cell Genesys entered into a Relocation Loan Agreement pursuant to
which Cell Genesys loaned $30,000 to Dr. Davis in exchange for a promissory note
secured by a deed of trust. No interest accrues on the loan until January 1,
2000. In June 1996, Cell Genesys assigned its rights under the promissory note
to the Company. As of December 31, 1997, the outstanding principal balance was
$30,000.
On August 26, 1997, Mr. Leutzinger received a $25,000 loan from Abgenix to
assist with relocation expenses. The $25,000 loan, which is evidenced by a full
recourse promissory note, will be forgiven in full once Mr. Leutzinger completes
12 months of employment. On February 27, 1998, Mr. Leutzinger and Abgenix
entered into a Relocation Loan Agreement pursuant to which Abgenix loaned
$100,000 to Mr. Leutzinger in exchange for a promissory note secured by a deed
of trust. No interest accrues on the loan until June 30, 2003.
The Company has entered into indemnification agreements with each of its
directors and executive officers. See "Management -- Limitation of Liability and
Indemnification Matters."
All future transactions, including any loans from Abgenix to its officers,
directors, principal stockholders or affiliates, will be approved by a majority
of the Board of Directors, including a majority of the independent and
disinterested members of the Board of Directors or, if required by law, a
majority of disinterested stockholders, and will be on terms no less favorable
to Abgenix than could be obtained from unaffiliated third parties.
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<PAGE> 63
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of the Common Stock as of March 31, 1998, and as adjusted
to reflect the sale of the Common Stock offered hereby for: (i) each person or
entity who is known by the Company to own beneficially more than 5% of the
Common Stock, (ii) each of the Company's directors, (iii) each Named Executive
Officer and (iv) all directors and executive officers as a group.
<TABLE>
<CAPTION>
PERCENTAGE OF SHARES
BENEFICIALLY
OWNED(1)
SHARES --------------------
BENEFICIALLY PRIOR TO AFTER
BENEFICIAL OWNER OWNED OFFERING OFFERING
---------------- ------------ -------- --------
<S> <C> <C> <C>
Cell Genesys, Inc.(2)....................................... 4,538,334 55.0% 40.3%
342 Lakeside Drive
Foster City, CA 94404
Robertson Stephens Investment Management Co. Entities(3).... 769,231 9.5 6.9
555 California Street, Suite 2600
San Francisco, CA 94104
S-E Banken Entities(4)...................................... 461,532 5.7 4.1
ST-R2, S-106 40
Stockholm, Sweden
Joseph E. Maroun(5)......................................... 4,708,107 56.9 41.8
Stephen A. Sherwin, M.D.(6)................................. 4,587,074 55.2 40.6
Raju S. Kucherlapati, Ph.D.(7).............................. 4,566,344 55.2 40.5
M. Kathleen Behrens, Ph.D.(3)............................... 784,616 9.6 7.0
R. Scott Greer(8)........................................... 147,084 1.8 1.3
C. Geoffrey Davis, Ph.D.(9)................................. 53,250 * *
Raymond M. Withy, Ph.D.(10)................................. 53,250 * *
Kurt W. Leutzinger.......................................... 0 * *
John A. Lipani, M.D.(11).................................... 28,411 * *
Mark B. Logan............................................... 0 * *
All directors and executive officers as a group (10
persons)(12).............................................. 5,851,468 69.1 51.0
</TABLE>
- ---------------
* Represents beneficial ownership of less than one percent of the Common
Stock.
(1) Beneficial ownership is determined in accordance with the rules of
Securities and Exchange Commission and generally includes voting or
investment power with respect to securities. Except as indicated by
footnote, and subject to community property laws where applicable, the
stockholders named in the table above has sole voting and investment power
with respect to all shares of Common Stock shown as beneficially owned by
them. Percentage of beneficial ownership is based on 8,137,512 shares of
Common Stock outstanding as of March 31, 1998 and 11,137,512 shares of
Common Stock outstanding after completion of this offering.
(2) Includes 121,667 shares issuable pursuant to warrants exercisable within 60
days of March 31, 1998.
(3) Includes 56,280 shares held by Bayview Investors, LTD, 224,145 shares held
by Crossover Fund II, L.P., 67,663 shares held by Crossover Fund IIA, L.P.,
334,079 shares held by Omega Ventures II, L.P. and 87,064 shares held by
Omega Ventures II Cayman, L.P. Each of the above entities is affiliated
with Robertson Stephens Investment Management Co. Dr. Behrens, a managing
director of Robertson Stephens Investment Management Co., disclaims
beneficial ownership of the shares of the Company held by the Robertson
Stephens Investment Management Co. Entities except to the extent of her pro
rata pecuniary interests therein.
(4) Includes 392,305 shares held by S-E Banken -- Lakemedelsfond and 69,227
shares held by S-E Banken -- Luxembourg S.A.
(5) Includes the Cell Genesys Owned Shares. Also includes 15,927 shares
issuable upon exercise of options exercisable within 60 days of March 31,
1998. Mr. Maroun is a director and beneficial stockholder of Cell Genesys.
As such, he may be deemed to have voting and dispositive power over the
Cell Genesys Owned Shares. However, Mr. Maroun disclaims beneficial
ownership of the Cell Genesys Owned Shares except to the extent of his pro
rata pecuniary interest therein based upon his beneficial ownership of the
capital stock of Cell Genesys.
(6) Includes the Cell Genesys Owned Shares. Also includes, 48,740 shares
issuable upon exercise of options exercisable within 60 days of March 31,
1998. Dr. Sherwin is an officer, director and beneficial stockholder of
Cell Genesys. As such, he may be deemed to have voting and dispositive
power over the Cell Genesys Owned Shares. However, Dr. Sherwin disclaims
beneficial ownership of the Cell Genesys Owned Shares except to the extent
of his pro rata pecuniary interest therein based upon his beneficial
ownership of the capital stock of Cell Genesys.
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<PAGE> 64
(7) Includes the Cell Genesys Owned Shares. Also includes, 18,010 shares
issuable upon exercise of options exercisable within 60 days of March 31,
1998. Dr. Kucherlapati is a director and beneficial stockholder of Cell
Genesys. As such, he may be deemed to have voting and dispositive power
over the Cell Genesys Owned Shares. However, Dr. Kucherlapati disclaims
beneficial ownership of the shares of the Cell Genesys Owned Shares except
to the extent of his pro rata pecuniary interest therein based upon his
beneficial ownership of the capital stock of Cell Genesys.
(8) Includes 25,574 shares issuable upon exercise of options exercisable within
60 days of March 31, 1998.
(9) Includes 53,250 shares issuable upon exercise of options exercisable within
60 days of March 31, 1998.
(10) Includes 17,834 shares issuable upon exercise of options exercisable within
60 days of March 31, 1998.
(11) Includes 28,411 shares issuable upon exercise of options exercisable within
60 days of March 31, 1998.
(12) Includes 207,746 shares issuable upon exercise of options exercisable
within 60 days of March 31, 1998 and 121,667 shares subject to warrants.
63
<PAGE> 65
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company's Restated Certificate of Incorporation, which will become
effective upon the closing of this offering, authorizes the issuance of up to
50,000,000 shares of Common Stock, $0.0001 par value per share and authorizes
the issuance of 5,000,000 shares of Preferred Stock, $0.0001 par value per
share, the rights and preferences of which may be established from time to time
by the Company's Board of Directors. As of March 31, 1998, 293,160 shares of
Common Stock were issued and outstanding and held by 59 stockholders and
7,844,352 shares of Preferred Stock were issued and outstanding and held by 31
stockholders. Upon the closing of this offering, all outstanding shares of
Preferred Stock will convert into an aggregate of 7,844,352 shares of Common
Stock.
COMMON STOCK
Each holder of Common Stock is entitled to one vote for each share held on
all matters to be voted upon by the stockholders and there are no cumulative
voting rights. Subject to preferences that may be applicable to any outstanding
Preferred Stock, holders of Common Stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors out of funds legally
available therefor. See "Dividend Policy." In the event of a liquidation,
dissolution or winding up of the Company, holders of Common Stock would be
entitled to share in the Company's assets remaining after the payment of
liabilities and the satisfaction of any liquidation preference granted to the
holders of any outstanding shares of Preferred Stock. Holders of Common Stock
have no preemptive or conversion rights or other subscription rights. There are
no redemption or sinking fund provisions applicable to the Common Stock. All
outstanding shares of Common Stock are, and the shares of Common Stock offered
by the Company in this offering, when issued and paid for, will be, fully paid
and nonassessable. The rights, preferences and privileges of the holders of
Common Stock are subject to, and may be adversely affected by the rights of the
holders of shares of any series of Preferred Stock which the Company may
designate in the future.
PREFERRED STOCK
Upon the closing of this offering, the Board of Directors will be
authorized, without any further action by the stockholders, subject to any
limitations prescribed by law, without stockholder approval, from time to time
to issue up to an aggregate of 5,000,000 shares of Preferred Stock, $0.0001 par
value per share, in one or more series, each of such series to have such rights
and preferences, including voting rights, dividend rights, conversion rights,
redemption privileges and liquidation preferences, as shall be determined by the
Board of Directors. The rights of the holders of Common Stock will be subject
to, and may be adversely affected by, the rights of holders of any Preferred
Stock that may be issued in the future. Issuance of Preferred Stock, while
providing desirable flexibility in connection with possible acquisitions and
other corporate purposes, could have the effect of making it more difficult for
a third party to acquire, or of discouraging a third party from attempting to
acquire, a majority of the outstanding voting stock of the Company. The Company
has no present plans to issue any shares of Preferred Stock.
WARRANTS AND OTHER OBLIGATIONS TO ISSUE CAPITAL STOCK
As of March 31, 1998, the Company has two outstanding warrants to purchase
an aggregate of 121,667 shares of Series A Preferred Stock at an exercise price
of $6.00 per share. These warrants are currently exercisable. One warrant will
expire on January 23, 2000 and the other warrant will expire on March 27, 2000.
Also, as of March 31, 1998, the Company is obligated to issue 25,000 shares of
the Common Stock upon the occurrence of certain milestones pursuant to the terms
of a license agreement.
64
<PAGE> 66
REGISTRATION RIGHTS OF CERTAIN HOLDERS
After the offering, the holders of 7,844,352 shares of Common Stock and
121,667 shares of Common Stock issuable upon exercise of outstanding warrants
(the "Registrable Securities") or their transferees are entitled to certain
rights with respect to the registration of such shares under the Securities Act.
These rights are provided under the terms of an agreement (the "Amended and
Restated Stockholder Rights Agreement") between the Company and the holders of
the Registrable Securities. The holders of at least 50% of the Registrable
Securities may require, subject to the lock-up agreements described under
"Underwriting" and certain limitations in the Amended and Restated Stockholder
Rights Agreement, on two occasions, that the Company use its best efforts to
register the Registrable Securities for public resale. If the Company registers
any of its Common Stock either for its own account or for the account of other
security holders, other than in connection with the registration of the shares
offered hereby and certain other exceptions, the holders of Registrable
Securities are entitled to include their shares of Common Stock in the
registration. A holder's right to include shares in an underwritten registration
statement is subject to the right of the underwriters to limit the number of
shares included in the offering, subject to certain limitations. The holders of
Registrable Securities may also require the Company on no more than two
occasions during any 12-month period to register all or a portion of their
Registrable Securities on Form S-3 when use of such form becomes available to
the Company, provided, among other limitations, that the proposed aggregate
selling price, net of underwriting discounts and commissions, is at least
$500,000. All registration expenses will be borne by the Company (subject to
certain limitations) and all selling expenses relating to Registrable Securities
must be borne by the holders of the securities being requested. If such holders,
by exercising their demand registration rights, cause a large number of
securities to be registered and sold in the public market, such sales could have
an adverse effect on the market price for the Company's Common Stock. If the
Company were to initiate a registration and include Registrable Securities
pursuant to the exercise of piggyback registration rights, the sale of such
Registrable Securities may have an adverse effect on the Company's ability to
raise capital.
CERTAIN CHARTER AND BYLAW PROVISIONS AND DELAWARE LAW
Certain provisions of the Company's Restated Certificate of Incorporation
and Bylaws may have the effect of making it more difficult for a third party to
acquire, or of discouraging a third party from attempting to acquire, control of
the Company. Such provisions could limit the price that certain investors might
be willing to pay in the future for shares of the Company's Common Stock.
Certain of these provisions allow the Company to issue Preferred Stock without
any vote or further action by the stockholders, eliminate the right of
stockholders to act by written consent without a meeting and eliminate
cumulative voting in the election of directors. These provisions may make it
more difficult for stockholders to take certain corporate actions an could have
the effect of delaying or preventing a change in control of the Company. In
addition, the Company is subject to Section 203 of the Delaware General
Corporation Law which, subject to certain exceptions, prohibits a Delaware
corporation from engaging in any business combination with any interested
stockholder, unless: (i) prior to such date, the Board of Directors of the
corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder; (ii) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder; the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of shares
outstanding those shares owned by persons who are directors and also officers
and by employee stock plans in which employee participants do not have the right
to determine confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; of (iii) on or subsequent to such date,
the business combination is approved by the Board of Directors and authorized at
an annual or special meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding voting stock which is
not owned by the interested stockholder.
65
<PAGE> 67
The Company's Amended and Restated Certificate of Incorporation eliminates
the right of stockholders to call special meetings of stockholders to act by
written consent without a meeting. The Amended and Restated Certificate of
Incorporation and Bylaws do not provide for cumulative voting in the election of
directors. The authorization of undesignated Preferred Stock makes it possible
for the board of directors to issue Preferred Stock with voting or other rights
or preferences that could impede the success of any attempt to change control of
the Company. These and other provisions may have the effect of deferring hostile
takeovers or delaying changes in control or management of the Company. The
amendment of any of these provisions would require approval by holders of at
least 66 2/3% of the outstanding Common Stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is Chase Mellon
Shareholder Services.
66
<PAGE> 68
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for the Common Stock of
the Company. Future sales of substantial amounts of Common Stock in the public
market could adversely affect market prices prevailing from time to time. Sales
of substantial amounts of Common Stock of the Company in the public market after
the restrictions lapse could adversely affect the prevailing market price and
the ability of the Company to raise equity capital in the future.
Upon the completion of this offering, based on the number of shares
outstanding as of March 31, 1998, the Company will have 11,137,512 shares of
Common Stock outstanding, assuming (i) the issuance by the Company of shares of
Common Stock offered hereby, (ii) no exercise of options, warrants or other
obligations to issue shares after March 31, 1998 and (iii) no exercise of the
Underwriters' over-allotment option to purchase 450,000 shares of Common Stock,
except as otherwise noted. Of these shares, the 3,000,000 shares sold in this
offering will be freely tradable without restriction under the Securities Act,
unless held by "affiliates" of the Company, as that term is defined in Rule 144
under the Securities Act. The remaining 8,137,512 shares of Common Stock held by
existing stockholders were issued and sold by the Company in reliance on
exemptions from the registration requirements of the Securities Act. These
shares may be sold in the public market only if registered, or pursuant to an
exemption from registration such as Rule 144, 144(k) or 701 under the Securities
Act. Ninety days after the date of this Prospectus, 29,668 shares of Common
Stock will be freely tradable without restriction under the Securities Act,
unless held by "affiliates" of the Company, as that term is defined in Rule 144
under the Securities Act. The Company's directors, executive officers and
certain stockholders, who in the aggregate hold 7,990,025 of the shares of
Common Stock of the Company outstanding immediately prior to the completion of
this offering, have entered into lock-up agreements under which they have agreed
not to offer, sell, contract to sell, grant any option to purchase or otherwise
dispose of, or agree to dispose of, directly or indirectly, any shares of Common
Stock, options or warrants to acquire shares of Common Stock or securities
exchangeable for or convertible into Common Stock owned by them for a period of
180 days after the date of this Prospectus, without the prior written consent of
BancAmerica Robertson Stephens. The Company has entered into a similar
agreement, except that the Company may grant options and issue stock under its
current stock option and stock purchase plans and pursuant to other currently
outstanding options, warrants or other obligations to issues shares. Upon
expiration of the 180-day lock-up agreement, 4,680,159 shares of Common Stock
will become eligible for immediate public resale, subject to volume limitations
pursuant to Rule 144. The remaining 3,356,020 shares held by existing
stockholders will become eligible for public resale at various times over a
period of less than one year following the completion of this offering, subject
to volume limitations. In addition, a director and a certain stockholder who in
the aggregate hold 71,665 of the shares of Common Stock outstanding immediately
prior to the completion of this offering have entered into lock-up agreements
substantially similar to the 180-day lock-up agreement described above except
that the term of the lock-up is 360 days. Upon expiration of the 360-day lock-up
agreements, all 71,655 of these shares will become eligible for public resale,
subject to volume limitations imposed by Rule 144. After the offering, the
holders of 7,844,352 shares of Common Stock will be entitled to certain demand
and piggyback rights with respect to registration of such shares under the
Securities Act. If such holders, exercising the demand registration rights,
causes a large number of securities to be registered and sold in the public
market, such shares could have an adverse effect on the market price for the
Company's Common Stock. If the Company were to initiate a registration and
include shares held by such holders pursuant to the exercise of their piggyback
registration rights, such sales may have an adverse effect on the Company's
ability to raise capital. Additionally, 121,667 shares issuable pursuant to
warrants and subject to the 180-day lock-up agreement, will also be entitled to
such registration rights. The number of shares sold in the public market could
increase if such registration rights are exercised.
As of March 31, 1998, 1,702,904 shares were subject to outstanding options.
Approximately 1,592,752 of these shares are subject to the 180-day lock-up
agreement described above. Of the remaining 110,152 shares subject to
outstanding options, approximately 44,101 were vested as of
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<PAGE> 69
March 31, 1998. After this offering, the Company intends to file a Registration
Statement on Form S-8 covering shares issuable under the Company's 1996 Plan
(including shares subject to then outstanding options under such plans),
Director Plan and Purchase Plan, thus permitting the resale of such shares in
the public market without restriction under the Securities Act after expiration
of the applicable lock-up agreements and any vesting restrictions. Also as of
March 31, 1998, the Company is obligated to issue 25,000 shares of Common Stock
upon the occurrence of certain milestones pursuant to the terms of a license
agreement.
In general, under Rule 144 as currently in effect, a person (or persons
whose shares are aggregated) who has beneficially owned shares for at least one
year (including the holding period of any prior owner, except an affiliate) is
entitled to sell in "broker's transactions" or to market makers, within any
three-month period commencing 180 days or 360 days, as the case may be, after
the date of this Prospectus, a number of shares that does not exceed the greater
of (i) one percent of the number of shares of Common Stock then outstanding
(approximately 111,375 shares immediately after this offering) or (ii) the
average weekly trading volume of the Common Stock during the four calendar weeks
preceding the required filing of a Form 144 with respect to such sale. Sales
under Rule 144 are generally subject to certain manner of sale provisions and
notice requirements and to the availability of current public information about
the Company. Under Rule 144(k), a person who is not deemed to have been an
affiliate of the Company at any time during the 90 days preceding a sale, and
who has beneficially owned the shares proposed to be sold for at least two
years, is entitled to sell such shares without having to comply with the manner
of sale, public information, volume limitation or notice provisions of Rule 144.
Under Rule 701 under the Securities Act, persons who purchase shares upon
exercise of options granted prior to the effective date of this offering are
entitled to sell such shares 180 days after the effective date of this offering
in reliance on Rule 144, without having to comply with the holding period
requirements of Rule 144 and, in the case of non-affiliates, without having to
comply with the public information, volume limitation or notice provisions of
Rule 144.
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<PAGE> 70
UNDERWRITING
The underwriters named below, acting through their representatives,
BancAmerica Robertson Stephens and Lehman Brothers Inc. (the "Representatives"),
have severally agreed with the Company, subject to the terms and conditions of
the Underwriting Agreement, to purchase the number of shares of Common Stock set
forth opposite their respective names below. The Underwriters are committed to
purchase and pay for all such shares if any are purchased.
<TABLE>
<CAPTION>
NUMBER
UNDERWRITER OF SHARES
----------- ---------
<S> <C>
BancAmerica Robertson Stephens..............................
Lehman Brothers Inc.........................................
---------
Total............................................. 3,000,000
=========
</TABLE>
The Representatives have advised the Company that the Underwriters propose
to offer the shares of Common Stock to the public at the initial public offering
price set forth on the cover page of this Prospectus and to certain dealers at
such price less a concession of not in excess of $ per share, of which
$ may be reallowed to other dealers. After the initial public offering,
the public offering price, concession and reallowance to dealers may be reduced
by the Representatives. No such reduction shall change the amount of proceeds to
be received by the Company as set forth on the cover page of this Prospectus.
The Company has granted to the Underwriters an option, exercisable during
the 30-Day period after the date of this Prospectus, to purchase up to 450,000
additional shares of Common Stock at the same price per share as the Company
will receive for the 3,000,000 shares that the Underwriters have agreed to
purchase. To the extent that the Underwriters exercise such option, each of the
Underwriters will have a firm commitment to purchase approximately the same
percentage of such additional shares that the number of shares of Common Stock
to be purchased by it shown in the above table represents as a percentage of the
3,000,000 shares offered hereby. If purchased, such additional shares will be
sold by the Underwriters on the same terms as those on which the 3,000,000
shares are being sold.
The Underwriting Agreement contains covenants of indemnity among the
Underwriters and the Company against certain civil liabilities, including
liabilities under the Securities Act and liabilities arising from breaches of
representations and warranties contained in the Underwriting Agreement.
Each officer, director and certain other stockholders of the Company
together holding or having dispositive power over substantially all of the
shares of the Company's Common Stock and Redeemable Preferred Stock have agreed
with the Representatives for a period of 180 days after the effective date of
this Prospectus (the "180-Day Lock-Up Period") subject to certain exceptions,
not to offer to sell, contract to sell, or otherwise sell, dispose of, loan,
pledge or grant any rights with respect to any shares of Common Stock, any
options or warrants to purchase any shares of Common Stock, or any securities
convertible into or exchangeable for shares of Common Stock owned as of the date
of this Prospectus or thereafter acquired directly by such holders or with
respect to which they have or hereafter acquire the power of disposition,
without the prior written consent of BancAmerica Robertson Stephens.
Approximately 4,680,159 of such shares will be eligible for immediate public
sale following expiration of the 180-Day Lock-Up Period, subject to the
provisions of Rule 144. The remaining 3,356,020 shares will become eligible for
public resale at various times over a period of less than one year following the
completion of this offering, subject to volume limitations. In addition, in
accordance with Rule 2710(c)(7)(A) of the National Association of Securities
Dealers, Inc. Conduct Rules, Mary Kathleen Behrens, a managing director of
Robertson Stephens Investment Management Co., and Bayview Investors, LTD., an
affiliate
69
<PAGE> 71
of Robertson Stephens Investment Management Co., have agreed for a period of 360
days after the effective date of this Prospectus (the "360-Day Lock-Up Period")
not to sell, pledge, transfer or hypothecate on terms substantially similar to
those described above, an aggregate of 71,665 shares of Common Stock held by
them. All of the 71,665 shares will be eligible for immediate public sale
following expiration of the 360-Day Lock-Up Period, subject to the provisions of
Rule 144. However, BancAmerica Robertson Stephens may, in its sole discretion
and at any time without notice, release all or any portion of the securities
subject to lock-up agreements. In addition, the Company has agreed that during
the 180-Day Lock-Up Period, the Company will not, without the prior written
consent of BancAmerica Robertson Stephens, subject to certain exceptions, issue,
sell, contract to sell, or otherwise dispose of, any shares of Common Stock, any
options or warrants to purchase any shares of Common Stock or any securities
convertible into, exercisable for or exchangeable for shares of Common Stock
other than the Company's sale of shares in this offering, the issuance of Common
Stock upon the exercise of outstanding options and the Company's issuance of
options and shares under existing employee stock option and stock purchase
plans. See "Shares Eligible For Future Sale."
The Underwriters do not intend to confirm sales to any accounts over which
they exercise discretionary authority in excess of 5% of the number of shares of
Common Stock offered hereby.
In December 1997, certain entities and persons affiliated with BancAmerica
Robertson Stephens purchased an aggregate of 784,616 shares of the Company's
Preferred Stock at a purchase price of $6.50 per share for an aggregate amount
of approximately $5.1 million. Such shares convert into 784,616 shares of Common
Stock on the closing of this offering. In addition, M. Kathleen Behrens, Ph.D.,
a director of the Company, is a managing director of Robertson Stephens
Investment Management Co.
Prior to this offering, there has been no public market for the Common
Stock of the Company. Consequently, the initial public offering price for the
Common Stock offered hereby was determined through negotiations among the
Company and the Representatives. Among the factors considered in such
negotiations were prevailing market conditions, certain financial information of
the Company, market valuations of other companies that the Company and the
Representatives believe to be comparable to the Company, estimates of the
business potential of the Company, the present state of the Company's
development and other factors deemed relevant.
The Representatives have advised the Company that, pursuant to Regulation M
under the Securities Act, certain persons participating in the offering may
engage in transactions, including stabilizing bids, syndicate covering
transactions or the imposition of penalty bids, which may have the effect of
stabilizing or maintaining the market price of the Common Stock at a level above
that which might otherwise prevail in the open market. A "stabilizing bid" is a
bid for or the purchase of the Common Stock on behalf of the Underwriters for
the purpose of fixing or maintaining the price of the Common Stock. A "syndicate
covering transaction" is the bid for or the purchase of the Common Stock on
behalf of the Underwriters to reduce a short position incurred by the
Underwriters in connection with the offering. A "penalty bid" is an arrangement
permitting the Representatives to reclaim the selling concession otherwise
accruing to an Underwriter or syndicate member in connection with the offering
if the Common Stock originally sold by such Underwriter or syndicate member is
purchased by the Representatives in a syndicate covering transaction and has
therefore not been effectively placed by such Underwriter or syndicate member.
The Representatives have advised the Company that such transactions may be
effected on the Nasdaq National Market or otherwise and, if commenced, may be
discontinued at any time.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo
Alto, California. Certain legal matters in connection with this offering will be
passed upon for the Underwriters by Cooley Godward LLP, Palo Alto, California.
As of March 31, 1998, a certain investment partnership and members of Wilson
Sonsini
70
<PAGE> 72
Goodrich & Rosati, Professional Corporation, beneficially owned an aggregate of
16,250 shares of Common Stock of the Company.
EXPERTS
The financial statements of Abgenix, Inc. at December 31, 1996 and 1997,
and for each of the three years in the period ended December 31, 1997 appearing
in this Prospectus and Registration Statement have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon appearing
elsewhere herein, and are included in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The financial statements of Xenotech, L.P. at December 31, 1996 and 1997
and for each of the three years in the period ended December 31, 1997 and for
the period from inception (June 12, 1991) to December 31, 1997, appearing in
this Prospectus and Registration Statement have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon appearing
elsewhere herein, and are included in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-1 under the Securities Act,
with respect to the Common Stock offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement and the
exhibits and schedules thereto. For further information with respect to the
Company and such Common Stock, reference is made to the Registration Statement
and the exhibits and schedules filed as a part thereof. Statements contained in
this Prospectus as to the contents of any contract or any other document
referred to are not necessarily complete. In each instance, reference is made to
the copy of such contract or document filed as an exhibit to the Registration
Statement, and each such statement is qualified in all respects by such
reference. Copies of the Registration Statement, including exhibits and
schedules thereto, may be inspected without charge at the Commission's principal
office in Washington, D.C., or obtained at prescribed rates from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. The Commission maintains a World Wide Web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission. The address of the site is
http://www.sec.gov.
71
<PAGE> 73
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Abgenix, Inc., Audited Financial Statements
Report of Ernst & Young LLP, Independent Auditors......... F-2
Balance Sheets............................................ F-3
Statements of Operations.................................. F-4
Statement of Changes in Redeemable Convertible Preferred
Stock and
Stockholders' Equity (Net Capital Deficiency).......... F-5
Statements of Cash Flows.................................. F-6
Notes to Financial Statements............................. F-7
Xenotech, L.P., Audited Financial Statements
Report of Ernst & Young LLP, Independent Auditors......... F-22
Balance Sheets............................................ F-23
Statements of Operations.................................. F-24
Statement of Partners' Capital............................ F-25
Statements of Cash Flows.................................. F-26
Notes to Financial Statements............................. F-27
</TABLE>
F-1
<PAGE> 74
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Abgenix, Inc.
We have audited the accompanying balance sheets of Abgenix, Inc. as of
December 31, 1996 and 1997, and the related statements of operations, changes in
redeemable convertible preferred stock and stockholders' equity (net capital
deficiency), and cash flows for each of the three years in the period ended
December 31, 1997. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Abgenix, Inc. at December
31, 1996 and 1997, and the results of its operations and its cash flows for each
of the three years in the period ended December 31, 1997, in conformity with
generally accepted accounting principles.
/s/ ERNST & YOUNG LLP
Palo Alto, California
January 23, 1998
F-2
<PAGE> 75
ABGENIX, INC.
BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA
STOCKHOLDERS'
DECEMBER 31, EQUITY AT
------------------- MARCH 31, MARCH 31,
1996 1997 1998 1998 (NOTE 9)
-------- -------- --------- --------------
(UNAUDITED)
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents............................ $ 7,190 $ 4,617 $ 971
Short-term investments............................... 2,982 10,704 12,369
Prepaid expenses and other current assets............ 158 550 786
-------- -------- ---------
Total current assets................................... 10,330 15,871 14,126
Property and equipment, net............................ 3,648 5,776 5,536
Deposits and other assets.............................. 379 437 535
-------- -------- ---------
$ 14,357 $ 22,084 $ 20,197
======== ======== =========
LIABILITIES AND STOCKHOLDERS' EQUITY (NET CAPITAL DEFICIENCY)
Current liabilities:
Short-term payable to parent......................... $ 2,429 $ 212 $ 68
Payable to Xenotech for cross-license and settlement
obligation......................................... -- 3,750 3,750
Accounts payable..................................... -- 426 168
Deferred revenue from related party.................. 376 -- --
Accrued stock issuance costs......................... -- 1,200 --
Other accrued liabilities............................ 1,961 2,000 3,337
Current portion of long-term debt.................... -- 1,646 1,658
-------- -------- ---------
Total current liabilities.............................. 4,766 9,234 8,981
Long-term note payable to parent....................... 1,757 -- --
Long-term debt......................................... -- 3,979 3,559
Commitments
Redeemable convertible preferred stock, $0.0001 par
value; 20,000,000 shares authorized, 3,750,000 and
7,263,209 shares issued and outstanding at December
31, 1996 and 1997, and 7,844,352 shares issued and
outstanding at March 31, 1998; (no shares pro forma),
at amount paid in; aggregate redemption and
liquidation value of approximately $45,003 and
$49,020 at December 31, 1997 and March 31, 1998,
respectively......................................... 10,150 31,189 35,125 $ --
Redeemable convertible preferred stock subscription
receivable........................................... -- (2,737) -- --
Redeemable convertible preferred stock issuable........ -- 2,737 -- --
Stockholders' equity (net capital deficiency):
Common stock, $0.0001 par value; 50,000,000 shares
authorized, 1,192, 233,542 and 293,160 shares
issued and outstanding at December 31, 1996 and
1997 and March 31, 1998, respectively; (8,137,512
shares pro forma), at amount paid in............... 1 351 397 35,522
Contributions from parent............................ 14,277 29,277 29,277 29,277
Additional paid-in capital........................... -- 1,776 2,296 2,296
Deferred compensation................................ -- (1,248) (1,619) (1,619)
Accumulated deficit.................................. (16,594) (52,474) (57,819) (57,819)
-------- -------- --------- --------
Total stockholders' equity (net capital deficiency).... (2,316) (22,318) (27,468) $ 7,657
-------- -------- --------- ========
$ 14,357 $ 22,084 $ 20,197
======== ======== =========
</TABLE>
See accompanying notes.
F-3
<PAGE> 76
\ ABGENIX, INC.
STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------- ------------------
1995 1996 1997 1997 1998
------- ------- -------- -------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenues:
Revenue under collaborative agreements
from related parties (net of equity
in losses of Xenotech of $1,702,
$3,866 and $897 for the years ended
December 31, 1995, 1996 and 1997, and
$110 and $115 for the three months
ended March 31, 1997 and 1998,
respectively)........................ $ 6,200 $ 4,719 $ 1,343 $ 335 $ 291
Contract revenue........................ -- -- 611 -- 600
------- ------- -------- -------- -------
Total revenues............................ 6,200 4,719 1,954 335 891
Operating expenses:
Research and development................ 11,879 9,433 11,405 2,078 5,366
General and administrative.............. 2,603 2,565 3,525 1,004 918
Charge for cross-license and settlement-
amount allocated from Cell Genesys... -- -- 11,250 11,250 --
Equity in losses from the Xenotech joint
venture (charge for cross-license and
settlement).......................... -- -- 11,250 3,750 --
------- ------- -------- -------- -------
Total operating expenses.................. 14,482 11,998 37,430 18,082 6,284
------- ------- -------- -------- -------
Operating loss............................ (8,282) (7,279) (35,476) (17,747) (5,393)
Other income and expenses:
Interest income......................... -- 203 307 124 197
Interest expense........................ -- (24) (711) (77) (149)
------- ------- -------- -------- -------
Net loss.................................. $(8,282) $(7,100) $(35,880) $(17,700) $(5,345)
======= ======= ======== ======== =======
Pro forma net loss per share.............. $ (9.22) $ (0.67)
======== =======
Shares used in computing pro forma net
loss per share.......................... 3,894 7,953
======== =======
</TABLE>
See accompanying notes.
F-4
<PAGE> 77
ABGENIX, INC.
STATEMENT OF CHANGES IN REDEEMABLE CONVERTIBLE PREFERRED STOCK AND
STOCKHOLDERS' EQUITY (NET CAPITAL DEFICIENCY)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
REDEEMABLE
CONVERTIBLE
PREFERRED REDEEMABLE
REDEEMABLE STOCK CONVERTIBLE
CONVERTIBLE SUBSCRIPTION PREFERRED STOCK
PREFERRED STOCK RECEIVABLE ISSUABLE
--------------- ------------ ---------------
<S> <C> <C> <C>
Balance at December 31, 1994....... $ -- $ -- $ --
Contributions from parent........ -- -- --
Net loss......................... -- -- --
------- ------- -------
Balance at December 31, 1995....... -- -- --
Contributions from parent........ -- -- --
Issuance of 3,750,000 shares of
Series A redeemable convertible
preferred stock to parent for
$10,000 cash and assignment of
employee notes totalling $150
in July 1996................... 10,150 -- --
Issuance of 1,192 shares of
common stock upon exercise of
stock options.................. -- -- --
Net loss......................... -- -- --
------- ------- -------
Balance at December 31, 1996....... 10,150 -- --
Contributions from parent........ -- -- --
Issuance of 2,846,542 shares of
Series B redeemable convertible
preferred stock in December
1997 for cash at $6.50 per
share, net of issuance costs of
$1,463......................... 17,039 -- --
Conversion of note payable to
parent into 666,667 shares of
Series A redeemable convertible
preferred stock in December
1997........................... 4,000 -- --
Stock subscription to purchase
421,143 shares of Series B
redeemable convertible
preferred stock at $6.50 per
share in December 1997......... -- (2,737) 2,737
Issuance of 176,756 shares of
common stock upon exercise of
stock options.................. -- -- --
Issuance of 55,594 shares of
common stock upon the exercise
of stock purchase rights....... -- -- --
Deferred compensation for stock
options issued below deemed
fair value..................... -- -- --
Amortization of deferred
compensation................... -- -- --
Net loss......................... -- -- --
------- ------- -------
Balance at December 31, 1997....... 31,189 (2,737) 2,737
Issuance of 160,000 shares of
Series C redeemable convertible
preferred stock at $8.00 per
share (unaudited).............. 1,280 -- --
Issuance of 421,143 shares of
Series B redeemable convertible
preferred stock, net of
issuance costs of $81
(unaudited).................... 2,656 2,737 (2,737)
Issuance of 59,618 shares of
common stock upon exercise of
stock options (unaudited)...... -- -- --
Deferred compensation for stock
options issued below deemed
fair value (unaudited)......... -- -- --
Amortization of deferred
compensation (unaudited)....... -- -- --
Net loss (unaudited)............. -- -- --
------- ------- -------
Balance at March 31, 1998
(unaudited)...................... $35,125 $ -- $ --
======= ======= =======
<CAPTION>
STOCKHOLDERS' EQUITY (NET CAPITAL DEFICIENCY)
--------------------------------------------------------------------------------
TOTAL
STOCKHOLDERS'
CONTRIBUTIONS ADDITIONAL EQUITY (NET
COMMON FROM PAID-IN DEFERRED ACCUMULATED CAPITAL
STOCK PARENT CAPITAL COMPENSATION DEFICIT DEFICIENCY)
------ ------------- ---------- ------------ ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994....... $ -- $ 1,212 $ -- $ -- $ (1,212) $ --
Contributions from parent........ -- 8,282 -- -- -- 8,282
Net loss......................... -- -- -- -- (8,282) (8,282)
---- ------- ------ ------- -------- --------
Balance at December 31, 1995....... -- 9,494 -- -- (9,494) --
Contributions from parent........ -- 4,783 -- -- -- 4,783
Issuance of 3,750,000 shares of
Series A redeemable convertible
preferred stock to parent for
$10,000 cash and assignment of
employee notes totalling $150
in July 1996................... -- -- -- -- -- --
Issuance of 1,192 shares of
common stock upon exercise of
stock options.................. 1 -- -- -- -- 1
Net loss......................... -- -- -- -- (7,100) (7,100)
---- ------- ------ ------- -------- --------
Balance at December 31, 1996....... 1 14,277 -- -- (16,594) (2,316)
Contributions from parent........ -- 15,000 -- -- -- 15,000
Issuance of 2,846,542 shares of
Series B redeemable convertible
preferred stock in December
1997 for cash at $6.50 per
share, net of issuance costs of
$1,463......................... -- -- -- -- -- --
Conversion of note payable to
parent into 666,667 shares of
Series A redeemable convertible
preferred stock in December
1997........................... -- -- -- -- -- --
Stock subscription to purchase
421,143 shares of Series B
redeemable convertible
preferred stock at $6.50 per
share in December 1997......... -- -- -- -- -- --
Issuance of 176,756 shares of
common stock upon exercise of
stock options.................. 128 -- -- -- -- 128
Issuance of 55,594 shares of
common stock upon the exercise
of stock purchase rights....... 222 -- -- -- -- 222
Deferred compensation for stock
options issued below deemed
fair value..................... -- -- 1,776 (1,776) -- --
Amortization of deferred
compensation................... -- -- -- 528 -- 528
Net loss......................... -- -- -- -- (35,880) (35,880)
---- ------- ------ ------- -------- --------
Balance at December 31, 1997....... 351 29,277 1,776 (1,248) (52,474) (22,318)
Issuance of 160,000 shares of
Series C redeemable convertible
preferred stock at $8.00 per
share (unaudited).............. -- -- -- -- -- --
Issuance of 421,143 shares of
Series B redeemable convertible
preferred stock, net of
issuance costs of $81
(unaudited).................... -- -- -- -- -- --
Issuance of 59,618 shares of
common stock upon exercise of
stock options (unaudited)...... 46 -- -- -- -- 46
Deferred compensation for stock
options issued below deemed
fair value (unaudited)......... -- -- 520 (520) -- --
Amortization of deferred
compensation (unaudited)....... -- -- -- 149 -- 149
Net loss (unaudited)............. -- -- -- -- (5,345) (5,345)
---- ------- ------ ------- -------- --------
Balance at March 31, 1998
(unaudited)...................... $397 $29,277 $2,296 $(1,619) $(57,819) $(27,468)
==== ======= ====== ======= ======== ========
</TABLE>
See accompanying notes.
F-5
<PAGE> 78
ABGENIX, INC.
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------------- --------------------
1995 1996 1997 1997 1998
------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net loss....................................... $(8,282) $ (7,100) $(35,880) $(17,700) $ (5,345)
Adjustments to reconcile net loss to net cash
used by operating activities:
Equity in losses of Xenotech (including the
charge for cross-license and settlement)... -- 3,866 12,147 3,860 115
Depreciation and amortization................ -- 8 1,489 85 445
Charge for cross-license and settlement...... -- -- 11,250 11,250 --
Changes in certain assets and liabilities:
Prepaid expenses and other current
assets................................... -- (58) (392) (666) (236)
Deposits and other assets.................. -- (337) (78) -- (98)
Short-term payable to parent............... -- 730 -- (939) (144)
Accounts payable........................... -- -- 426 -- (258)
Deferred revenue from related parties...... -- 376 (376) (376) --
Accrued stock issuance costs............... -- -- 1,200 -- (1,200)
Other accrued liabilities.................. -- 345 39 (674) 1,337
------- -------- -------- -------- --------
Net cash used in operating activities.......... (8,282) (2,170) (10,175) (5,160) (5,384)
------- -------- -------- -------- --------
INVESTING ACTIVITIES
Purchases of short-term investments............ -- (2,982) (15,505) (4,824) (3,643)
Sales of short-term investments at maturity.... -- -- 7,783 2,919 1,978
Capital expenditures........................... -- (334) (1,075) (1,195) (54)
Contributions to Xenotech...................... -- (3,864) (4,647) (98) (117)
------- -------- -------- -------- --------
Net cash used in investing activities.......... -- (7,180) (13,444) (3,198) (1,836)
------- -------- -------- -------- --------
FINANCING ACTIVITIES
Net proceeds from issuances of redeemable
convertible preferred stock.................. -- 10,000 17,039 -- 3,936
Proceeds from issuance of note payable to
parent....................................... -- 1,757 -- 819 --
Proceeds from long-term debt................... -- -- 4,300 4,757 --
Contributions from parent...................... 8,282 4,783 -- -- --
Payments under long-term debt.................. -- -- (643) -- (408)
Proceeds from issuance of common stock......... -- -- 350 -- 46
------- -------- -------- -------- --------
Net cash provided by financing activities...... 8,282 16,540 21,046 5,576 3,574
------- -------- -------- -------- --------
Net increase (decrease) in cash and cash
equivalents.................................. -- 7,190 (2,573) (2,782) (3,646)
Cash and cash equivalents at the beginning of
the period................................... -- -- 7,190 7,190 4,617
------- -------- -------- -------- --------
Cash and cash equivalents at the end of the
period....................................... $ -- $ 7,190 $ 4,617 $ 4,408 $ 971
======= ======== ======== ======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION
Cash paid during the year for interest......... $ -- $ 10 $ 632 $ -- $ 150
======= ======== ======== ======== ========
NONCASH INVESTING AND FINANCING ACTIVITIES
Allocation of charges related to the
cross-license and settlement from parent and
Xenotech..................................... $ -- $ -- $ 15,000 $ 15,000 $ --
======= ======== ======== ======== ========
Conversion of note payable to parent........... -- -- 4,000 -- --
======= ======== ======== ======== ========
Financed property and equipment acquisitions... -- 3,314 -- -- --
======= ======== ======== ======== ========
Assignment of note receivable from Xenotech.... -- 30 -- -- --
======= ======== ======== ======== ========
Assignment of note receivable from parent...... -- 150 -- -- --
======= ======== ======== ======== ========
Furniture and equipment acquired under capital
lease financing.............................. -- -- 1,968 447 --
======= ======== ======== ======== ========
Deferred compensation related to grant of
certain stock options........................ -- -- 1,776 -- 520
======= ======== ======== ======== ========
</TABLE>
See accompanying notes.
F-6
<PAGE> 79
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization and Basis of Presentation
Abgenix, Inc., a Delaware corporation ("Abgenix" or the "Company"), a
subsidiary of Cell Genesys, Inc., ("Cell Genesys" or the "Parent") develops and
intends to commercialize antibody therapeutic products for the prevention and
treatment of a variety of disease conditions, including transplant-related
diseases, inflammatory and autoimmune disorders and cancer. The Company has
developed a proprietary technology which it believes enables it to quickly
generate high affinity, fully human antibody product candidates to essentially
any disease target appropriate for antibody therapy. The operations of Abgenix
commenced in 1989 and were initially conducted as a research project within Cell
Genesys. On June 24, 1996, Abgenix was incorporated and subsequently on July 15,
1996 it was organized pursuant to a Stock Purchase and Transfer Agreement
between the Company and Cell Genesys. The agreement sets forth the terms and
conditions for the transfer of the antibody business and operations within Cell
Genesys to Abgenix.
The accompanying financial statements include the operations of Abgenix
since July 15, 1996, and the revenues and expenses of Abgenix as a research
project within Cell Genesys prior to July 15, 1996. The Company was not a
separate business unit or division within Cell Genesys and, therefore, no
separate accounting records existed for the Company during the period it was
operated as a research project within Cell Genesys. All administrative functions
were handled by Cell Genesys and the costs of operations, while part of Cell
Genesys, were estimated from project cost records and were recorded as
contributions. All assets and liabilities for 1994 and 1995 were combined with
Cell Genesys and it was impractical and not meaningful to carve out the balance
sheets for such periods. As a result, it is not possible to present a detailed
statement of cash flows for the Company for the year ended December 31, 1995.
Prior to July 15, 1996, specifically identified revenues and costs such as
research and development were allocated to Abgenix from Cell Genesys. General
and administrative expenses were allocated based on Abgenix research and
development expense as a percentage of Cell Genesys' total research and
development expenses. From July 16, 1996 to July 31, 1997, Cell Genesys
performed certain general and administrative functions on behalf of Abgenix. The
Company estimates that the general and administrative costs would have been
$500,000 to $1,000,000 higher (unaudited) for each year of operation on a
stand-alone basis. The Company believes the allocation methodology used was
reasonable.
In 1997, the Company incurred an aggregate non-recurring charge for
cross-license and settlement of $22,500,000 which represents an allocation of
$11,250,000 from Cell Genesys and an entry to record the equity in the losses of
an equally owned joint venture with JT America, Inc., a medical subsidiary of
Japan Tobacco Inc. and the Company ("Xenotech") of $11,250,000 (see Note 6).
Unaudited Pro Forma Stockholders' Equity (Net Capital Deficiency)
If the offering contemplated by this Prospectus is consummated, all of the
redeemable convertible preferred shares outstanding as of the closing date will
automatically be converted into 7,844,352 shares of common stock based on the
shares of redeemable preferred stock outstanding as of March 31, 1998. Unaudited
pro forma stockholders' equity at March 31, 1998, as adjusted for the conversion
of preferred stock, is disclosed on the balance sheet.
Interim Financial Information
The financial information at March 31, 1998 and for the three months ended
March 31, 1997 and 1998 is unaudited but includes all adjustments (consisting
only of normal recurring adjustments)
F-7
<PAGE> 80
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -- (CONTINUED)
which the Company considers necessary for a fair presentation of the financial
position at such date and the operating results and cash flows for those
periods. Results for the three months ended March 31, 1998 are not necessarily
indicative of results for any other interim period or for the entire year.
Revenue Recognition
Revenues related to collaborative research agreements with corporate
partners are recognized ratably over the related funding periods for each
contract. For research funding, the Company is required to perform research
activities as specified in each respective agreement on a best efforts basis,
and the Company is reimbursed based on the fees stipulated in the respective
agreements which approximates cost. Deferred revenue may result when the Company
does not incur the required level of effort during a specific period in
comparison to funds received under the respective contracts. Milestone payments
are recognized pursuant to collaborative agreements upon the achievement of the
specified milestone, where no future obligation to perform exists for that
milestone. Nonrefundable signing fees, under which no future obligation to
perform exists, are recognized when the cash is received. Revenues related to
the Xenotech research agreement are recognized net of the Company's related
contributions to Xenotech.
Research and Development
Research and development expenses, including direct and allocated expenses,
consist of independent research and development costs and costs associated with
sponsored research and development.
Net Loss Per Share
In 1997, the Company adopted Financial Accounting Standards Board Statement
of Financial Accounting Standard No. 128, "Earnings Per Share" ("SFAS 128").
SFAS 128 replaced the calculation of primary and fully diluted earnings per
share with basic and diluted earnings per share. Unlike primary earnings per
share, basic earnings per share is computed using the weighted average number of
common shares outstanding and excludes any dilutive effects of options, warrants
and convertible securities. Diluted earnings per share is very similar to the
previously reported fully diluted earnings per share. Potentially dilutive
securities have been excluded from the computation as their effect is
antidilutive.
Pro forma net loss per share has been computed to give effect to the
automatic conversion of redeemable convertible preferred stock into common stock
upon completion of the Company's initial public offering (using the
as-if-converted method) from the original date of issuance.
F-8
<PAGE> 81
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -- (CONTINUED)
A reconciliation of shares used in calculation of basic and diluted and pro
forma net loss per share follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31,
------------------------- ----------------------------
1996 1997 1997 1998
----------- ----------- ------------- ------------
<S> <C> <C> <C> <C>
Net loss............................... $(7,100,000) $(35,880,000) $(17,700,000) $(5,345,000)
=========== =========== ============ ===========
Basic and diluted:
Weighted-average shares of common
stock outstanding used in
computing basic and diluted net
loss per share.................... 152 34,744 1,242 268,692
=========== =========== ============ ===========
Basic and diluted net loss per share... $(46,710.53) $ (1,032.69) $ (14,251.21) $ (19.89)
=========== =========== ============ ===========
Pro forma:
Shares used in computing basic and
diluted net loss per share (from
above)............................ 152 34,744 1,242 268,692
Adjusted to reflect the effect of the
assumed conversion of preferred
stock from the date of issuance... 3,750,000 3,858,843 3,750,000 7,684,352
----------- ----------- ------------ -----------
Weighted-average shares used in
computing pro forma net loss per
share............................. 3,750,152 3,893,587 3,751,242 7,953,044
=========== =========== ============ ===========
Pro forma net loss per share........... $ (1.89) $ (9.22) $ (4.72) $ (0.67)
=========== =========== ============ ===========
</TABLE>
Had the Company been in a net income position, diluted earnings per share
would have included the shares used in the computation of pro forma net loss per
share as well as an additional 1,168,883, 1,623,630, and 1,825,300 shares
related to outstanding options and warrants not included above (determined using
the treasury stock method at the estimated average fair value) for the years
ended December 31, 1996 and 1997, and for the three months ended March 31, 1998,
respectively.
Net loss per share has not been presented prior to the Company's
organization on July 15, 1996, as there were no outstanding equity securities
prior to that period.
Cash Equivalents and Short-Term Investments
The Company considers all highly-liquid investments purchased with a
maturity from the date of purchase of three months or less to be cash
equivalents; investments with maturities in excess of three months are
considered to be short-term investments.
The Company's investment securities are classified as available-for-sale
and carried at fair value. The Company determines the appropriate classification
of securities at the time of purchase and reevaluates such designation as of
each balance sheet date.
Depreciation and Amortization
The Company records property and equipment at cost and provides
depreciation using the straight-line method over the estimated useful lives of
the assets, generally five years. Furniture and equipment leased under capital
leases is amortized over the shorter of the useful lives or the lease
F-9
<PAGE> 82
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -- (CONTINUED)
term. Amortization of leased assets is included in depreciation and amortization
expense and is combined with accumulated depreciation and amortization of the
Company's owned assets.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Other Recent Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130"), and Statement of Financial Accounting Standards No. 131, "Disclosures
about Segments of an Enterprise and Related Information" ("SFAS 131"), which
require additional disclosures to be adopted beginning in the first quarter of
1998 and on December 31, 1998, respectively. Under SFAS 130, the Company will be
required to display comprehensive income and its components as part of the
Company's full set of financial statements. SFAS 131 requires that the Company
report financial and descriptive information about its reportable operating
segments. The Company has determined that the impact of adopting SFAS 130 and
SFAS 131 on its future financial statement disclosures is not material.
2. COLLABORATION AGREEMENT WITH XENOTECH
Xenotech
In 1991, Cell Genesys and JT America, Inc. formed Xenotech to develop
genetically modified strains of mice which can produce human monoclonal
antibodies and to commercialize products generated from these mice. Upon the
creation of Abgenix, Cell Genesys' rights in the joint venture were assigned to
the Company. Xenotech funds its research, which is generally conducted by
Abgenix, through capital contributions from the partners. The Company paid and
expensed as research and development $350,000, $172,500 and $195,000 related to
licensing the rights to this technology from Xenotech for the years ended
December 31, 1996 and 1997 and the three months ended March 31, 1998,
respectively.
F-10
<PAGE> 83
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
2. COLLABORATION AGREEMENT WITH XENOTECH -- (CONTINUED)
The Company is obligated to pay 50% of all Xenotech's funding requirements.
The Company accounts for its investment in Xenotech under the equity method; 50%
of Xenotech's research and development expenses up to the Company's investment
amount. Details are as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------- -------------------
1995 1996 1997 1997 1998
------ ------ -------- ------ ---------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Abgenix's share of
Xenotech losses...... $2,315 $3,306 $ 12,347 $3,836 $ 117
Losses associated with
cross-license and
settlement........... -- -- (11,250) (3,750) --
Unabsorbed losses...... -- -- -- -- (2)
Difference due to
timing and change in
deferred revenue..... (613) 560 (200) 24 --
------ ------ -------- ------ ---------
Equity in losses of
Xenotech............. $1,702 $3,866 $ 897 $ 110 $ 115
====== ====== ======== ====== =========
</TABLE>
The Company recognized revenue of $6,200,000, $4,719,000, $1,343,000,
$335,000 and $291,000 for the years ended 1995, 1996 and 1997, and for the three
months ended March 31, 1997 and 1998, respectively, net of its own payments to
the joint venture related to this revenue.
Summary financial information for Xenotech is as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------------- ------------------
1995 1996 1997 1997 1998
-------- ------- -------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Total assets......... $ 1,357 $ 492 $ 7,569 $ 7,985 $ 7,643
Total liabilities.... 601 59 7,556 7,494 7,566
Total revenues....... 4,747 1,912 272 25 210
Total operating
expenses........... (11,926) (8,547) (24,964) (7,700) (445)
Net loss............. (7,129) (6,614) (24,680) (7,672) (235)
</TABLE>
3. COLLABORATION AND LICENSE AGREEMENTS
CBL License Agreement
On February 1, 1997, the Company entered into a license agreement for
exclusive worldwide rights to commercialize ABX-CBL. The Company paid an initial
license fee and is further obligated to pay an annual maintenance fee of
$50,000, to commit at least $1 million annually to the development of ABX-CBL
until ABX-CBL receives regulatory approval in any country and to pay royalties
on potential product sales. The Company is also obligated to issue 25,000 shares
of its common stock upon the submission of a Product License Application for the
first indication of the product.
Research Collaboration and License Option Agreement with Pfizer
In December 1997, Abgenix established a research collaboration with Pfizer
Inc. ("Pfizer"). In connection with the execution of the agreement, Pfizer paid
the Company a fee upon signing and may
F-11
<PAGE> 84
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
3. COLLABORATION AND LICENSE AGREEMENTS -- (CONTINUED)
make additional payments to Abgenix upon completion of certain research
milestones. Additionally, Pfizer has an option to expand the research
collaboration. The agreement expires in December 1999.
Concurrent with the execution of the research collaboration agreement,
Pfizer and Abgenix entered into a license and royalty agreement that grants
Pfizer the option to acquire an exclusive, worldwide license to develop, make,
use and sell antibody products derived from the research collaboration. If
Pfizer chooses to exercise its option to expand the research collaboration,
Abgenix could receive potential license fees and milestone payments of up to
approximately $8,000,000 per antigen upon the completion of certain milestones,
including preclinical and clinical trials and receipt of regulatory approval.
Additionally, if a product receives marketing approval from the FDA or an
equivalent foreign agency, the Company is entitled to receive royalties on
future product sales by Pfizer. Pfizer will be responsible for manufacturing,
product development and marketing of any products developed through this
collaboration.
In January 1998, the Company also entered into a stock purchase agreement
with Pfizer to purchase 160,000 shares of the Company's Series C redeemable
convertible preferred stock at $8.00 per share. The holder of each share of
Series C redeemable convertible preferred stock is entitled to voting rights
equivalent to the number of shares of common stock for which each share can be
converted into and is convertible, at the option of the holder, into one share
of common stock, subject to certain antidilution adjustments. Conversion is
automatic upon the closing of a firm commitment underwritten public offering
pursuant to an effective registration statement under the Securities Act of 1933
at a per share price of $11.00 and an aggregate offering price of not less than
$15,000,000. The holders of Series A and Series B preferred stock have priority
over the holders of Series C preferred stock in any dividends declared and in
liquidation preferences in the event of a winding up of the Company. The
liquidation preference for Series C preferred stock is $8.00 per share.
Noncumulative dividends on Series C preferred stock are payable at a rate of
$0.64 per share per annum out of available earnings if and when declared by the
board of directors.
Research Collaboration with Schering-Plough
In January 1998, Abgenix established a research collaboration with
Schering-Plough Research Institute ("Schering-Plough"). In connection with the
execution of the agreement, Schering-Plough paid the Company a fee upon signing
and will be obligated to make additional payments to Abgenix upon completion of
the research.
In addition, the agreement provides Schering-Plough with an option, for a
limited time, to enter into a research, option and license agreement that
provides Schering-Plough an option to obtain with an exclusive worldwide license
to develop, make, use and sell antibody products derived from the research
collaboration. If the option is exercised, the research, option and license
agreement may provide Abgenix with up to approximately $8,000,000 in additional
research fees and milestone payments upon the completion of certain milestones,
including preclinical and clinical trials and receipt of regulatory approval.
Additionally, if a product receives marketing approval from the FDA or an
equivalent foreign agency, the Company is entitled to receive royalties on
future product sales by Schering-Plough.
4. AVAILABLE-FOR-SALE SECURITIES
All of the Company's available-for-sale securities consist of commercial
paper and U.S. government obligations and are classified as short-term
investments. All investments mature within one year.
F-12
<PAGE> 85
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
4. AVAILABLE-FOR-SALE SECURITIES -- (CONTINUED)
These investments are carried at market, which approximates cost. There were no
significant unrealized gains or losses related to these investments.
The following is a summary of available-for-sale securities at fair value,
which approximates amortized cost:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------
1996 1997
------- -------
(IN THOUSANDS)
<S> <C> <C>
Commercial paper....................................... $10,093 $12,038
U.S. government obligations............................ -- 2,881
------- -------
Total.................................................. $10,093 $14,919
======= =======
</TABLE>
Included in cash and cash equivalents at December 31, 1996 and 1997 are
available-for-sale securities of $7,111,000 and $4,215,000, respectively.
Included in short-term investments at December 31, 1996 and 1997 are
available-for-sale securities of $2,982,000 and $10,704,000, respectively. At
December 31, 1997, the average remaining maturity of the portfolio is less than
12 months.
5. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------
1996 1997
------- -------
(IN THOUSANDS)
<S> <C> <C>
Furniture, machinery and equipment..................... $ 611 $ 2,188
Leasehold improvements................................. 3,037 4,503
------- -------
3,648 6,691
Less accumulated depreciation and amortization......... -- (915)
------- -------
$ 3,648 $ 5,776
======= =======
</TABLE>
The Company did not record any depreciation on assets in 1996 as such
assets were all purchased in the last month of the year. Property and equipment
financed under capital leases was $1,968,000 at December 31, 1997. Accumulated
amortization related to this equipment totaled $383,000 at December 31, 1997.
6. COMMITMENTS
Long-Term Note Payable to Cell Genesys
In July 1996, the Company issued a $4,000,000 Convertible Promissory Note
(the "Note") to Cell Genesys which the Company could draw against in order to
pay for services provided by Cell Genesys. As of December 31, 1996, the Company
had drawn $1,757,000 against the Note. Interest accrued at the rate of 6.82% per
annum on the outstanding principal until July 15, 1997, whereupon the accrued
interest was added to the outstanding principal of the Note. The entire
principal and accrued interest amount was due on or before July 14, 2000. In
December 1997, the Company had drawn $4,000,000 against the Note and Cell
Genesys exercised its option to convert the Note into 666,667 shares of Series A
convertible preferred stock at a conversion price of $6.00 per share.
F-13
<PAGE> 86
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
6. COMMITMENTS -- (CONTINUED)
Short-Term Payable to Cell Genesys
Until June 30, 1997, the Company reimbursed Cell Genesys for payments made
to third parties on behalf of the Company. At December 31, 1997 and March 31,
1998, the Company owed $212,000 and $68,000 to Cell Genesys for this
reimbursement.
Loan
On January 24, 1997, the Company secured a loan with a bank in the amount
of $4,300,000 in order to finance tenant improvements on its facility in
Fremont, California. The loan matures in January 2001 and bears an annual
interest rate of prime plus 1.0% (9.5% for the year ended December 31, 1997).
The loan is guaranteed by Cell Genesys until the Company completes an initial
public offering of its common stock which raises net proceeds of at least
$20,000,000, and the loan is secured by substantially all tangible and
intangible assets of the Company.
Capital Lease
On March 28, 1997, the Company entered into a lease agreement with a
financing company under which the Company may finance up to $3,000,000 of its
laboratory and office equipment. The lease term is 48 months and is guaranteed
by Cell Genesys until the Company completes its initial public offering of its
common stock which raises net proceeds of at least $20,000,000.
Future principal payments under the loan and minimum payments under the
capital lease are as follows:
<TABLE>
<CAPTION>
CAPITAL TOTAL
LOAN LEASE PAYMENTS
------- ------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Year ending December 31,
1998.................................... $ 1,259 $ 594 $ 1,853
1999.................................... 1,259 594 1,853
2000.................................... 1,258 594 1,852
2001.................................... 105 432 537
------- ------- --------
Total..................................... 3,881 2,214 6,095
Less amount representing interest......... -- (470) (470)
------- ------- --------
Present value of future payments.......... 3,881 1,744 5,625
Less current portion...................... (1,259) (387) (1,646)
------- ------- --------
Noncurrent portion........................ $ 2,622 $ 1,357 $ 3,979
======= ======= ========
</TABLE>
The carrying value of the loan approximates fair value at December 31,
1997. The fair value of the loan was estimated using discounted cash flow
analysis, based on the incremental borrowing rates currently available to the
Company for borrowings with similar terms and maturity.
F-14
<PAGE> 87
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
6. COMMITMENTS -- (CONTINUED)
Facility Lease
In October 1996, the Company signed an operating lease commencing February
1, 1997, for its facilities in Fremont, California. The lease expires in January
2007, however, the Company has the option to extend the term through 2016.
Future minimum payments under the noncancelable operating lease at December 31,
1997 are:
<TABLE>
<CAPTION>
(IN THOUSANDS)
<S> <C>
Year ending December 31,
1998.............................. $ 862
1999.............................. 891
2000.............................. 923
2001.............................. 955
2002.............................. 987
Thereafter........................ 4,360
------
Total lease payments................ $8,978
======
</TABLE>
Rent expense was approximately $567,000 for the year ended December 31,
1997.
Charge for Cross-License and Settlement
On March 27, 1997, Cell Genesys announced, along with Abgenix, Xenotech and
Japan Tobacco Inc., that it had signed a comprehensive patent cross-license and
settlement agreement with GenPharm that resolved all related litigation and
claims between the parties. As initial consideration for the cross-license and
settlement agreement, Cell Genesys issued a note to GenPharm due September 30,
1998 for $15,000,000 payable by Cell Genesys and convertible into shares of Cell
Genesys common stock, currently at $8.62 per share. Of this note, $3,750,000
satisfied certain of Xenotech's obligations under the agreement. Japan Tobacco
also made an initial payment. During 1997, two patent milestones were achieved
and Xenotech was obligated to pay $7,500,000 for each milestone. Xenotech paid
$7,500,000 to satisfy the first milestone and has recorded a payable to GenPharm
for the remaining $7,500,000. The Company has recorded a liability of $3,750,000
in its balance sheet representing its share of the Xenotech obligation since the
joint venture partners are equally obligated to fund the cash requirements of
Xenotech. The payable is due on or before November 1998. No additional payments
will accrue under this agreement.
The Company has recognized as a non-recurring charge for cross-license and
settlement, a total of $22,500,000 ($15,000,000 through March 31, 1997). The
full amount of the cross-license and settlement costs has been recognized in the
Company's statement of operations for the year ended December 31, 1997 because
the Company has determined that the cross-license received by the Company from
GenPharm is non-exclusive and has no alternative future uses for the Company.
Pursuant to Staff Accounting Bulletin 55, Cell Genesys allocated its
portion of the settlement obligation, $11,250,000, to Abgenix since the related
technology was contributed upon formation of Abgenix. The $15,000,000 note
issued by Cell Genesys was recorded as a capital contribution by Abgenix. In
accordance with the joint venture agreement, Abgenix has also recorded an
expense of $11,250,000 representing 50% of the Xenotech expense.
F-15
<PAGE> 88
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
7. STOCKHOLDERS' EQUITY
Redeemable Convertible Preferred Stock
In December 1997, the Company created a new series of preferred stock,
designated as Series A redeemable convertible preferred stock and converted each
outstanding share of Series A senior and Series 1 subordinated convertible
preferred stock, par value of $0.0001 per share, into one share of Series A
redeemable convertible preferred stock, par value of $0.0001 per share. No value
was attributed to the conversion as the preferred stock rights given up
substantially equalled the new rights received. The financial statements as
presented reflect only the Series A redeemable convertible preferred stock as if
converted at the date of original issuance.
The following table describes information with respect to the various
series of redeemable convertible preferred stock as of March 31, 1998:
<TABLE>
<CAPTION>
LIQUIDATION
SHARES ISSUANCE PREFERENCES AND DIVIDEND
SHARES ISSUED AND PRICE REDEMPTION PRICE RATE
DESIGNATED OUTSTANDING PER SHARE PER SHARE PER SHARE
---------- ----------- ----------- ---------------- ---------
<S> <C> <C> <C> <C> <C>
Series A...................... 5,396,667 4,416,667 $2.71-$6.00 $6.00 $0.48
Series B...................... 3,385,000 3,267,685 $6.50 $6.50 $0.52
Series C...................... 160,000 160,000 $8.00 $8.00 $0.64
--------- ---------
8,941,667 7,844,352
========= =========
</TABLE>
Each share of preferred stock is entitled to voting rights equivalent to
the number of shares of common stock for which each share can be converted into
and is convertible, at the option of the holder, into one share of common stock,
subject to certain antidilution adjustments. Conversion is automatic upon the
closing of a firm commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933 at a per share
price of not less than $11.00 and an aggregate offering price of not less than
$15,000,000.
Preferred stockholders have certain rights of first refusal which allow
them to participate ratably in any future issuances of stock to maintain their
original ownership percentages. This right terminates upon a public offering.
Noncumulative dividends on the preferred stock are payable at the above stated
rates per share out of available earnings if and when declared by the board of
directors.
The holders of Series B preferred stock shall have priority over the
holders of Series A preferred stock and Series A preferred stock over Series C
preferred stock in liquidation preferences in the event of a winding up of the
Company.
After the fourth anniversary of the respective first issuance of Series B
preferred stock (in the case of holders of Series A and Series B preferred
stock) and Series C preferred stock (in the case of holders of Series C
preferred stock), the preferred stockholders have the right to redeem all or
part of their preferred shares if, and only if, at least a majority of the
preferred stockholders entitled to redemption agree in writing. The redemption
price is initially set at the liquidation preference per share and is adjusted
upon the occurrence of certain events.
Warrants
In connection with the loan guaranteed by Cell Genesys in January 1997, the
Company issued a warrant to purchase 71,667 shares of Series A redeemable
convertible preferred stock at an exercise price of $6.00 per share to Cell
Genesys. The warrants are exercisable immediately and expire three years from
issuance. Should all of the Company's preferred stock be redeemed or converted
into
F-16
<PAGE> 89
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
7. STOCKHOLDERS' EQUITY -- (CONTINUED)
common stock, then the warrant becomes exercisable for the number of shares of
common stock as if the warrant had been exercised in full for preferred stock.
In connection with the loan guaranteed by Cell Genesys in March 1997, the
Company issued a second warrant to purchase 50,000 shares of convertible
preferred stock at an exercise price of $6.00 per share to Cell Genesys. The
terms for exercise and expiration are the same as the January 1997 warrants.
The fair value of the above warrants was insignificant for accounting
purposes.
1996 Incentive Stock Plan
The Company has elected to follow Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees" ("APB 25") and related
interpretations in accounting for its employee stock options because, as
discussed below, the alternative fair value accounting provided for under
Financial Accounting Standards Board Statement No. 123, "Accounting for
Stock-Based Compensation," ("SFAS 123") requires use of option valuation models
that were not developed for use in valuing employee stock options. Under APB 25,
because the exercise price of the Company's employee stock option equals the
market price of the underlying stock on the date of grant, no compensation
expense is recognized.
The 1996 Incentive Stock Plan (the "Plan") provides for the granting of
options to purchase common stock to employees, outside directors and consultants
of the Company. Stock purchase rights are granted only to employees or
consultants. The Company grants shares of common stock for issuance under the
Plan at no less than the fair value of the stock (85% of fair value for
nonqualified options and stock purchase rights). Options granted under the Plan
generally have a term of ten years and vest over four years at the rate of 25%
one year from the grant date and 1/48 monthly thereafter.
F-17
<PAGE> 90
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
7. STOCKHOLDERS' EQUITY -- (CONTINUED)
Information with respect to the Plan activity is as follows:
<TABLE>
<CAPTION>
WEIGHTED-
SHARES NUMBER OF AVERAGE
AVAILABLE SHARES EXERCISE PRICE
---------- --------- --------------
<S> <C> <C> <C>
Authorized at inception............. 1,600,000 -- --
Options granted below fair
value.......................... (1,185,100) 1,185,100 $0.60
Options exercised................. -- (1,192) $0.60
Options canceled.................. 15,025 (15,025) $0.60
---------- --------- -----
Balances at December 31, 1996....... 429,925 1,168,883 $0.60
Authorized........................ 791,250 -- --
Options granted below fair
value.......................... (676,644) 676,644 $2.36
Options exercised................. -- (232,350) $1.51
Options canceled.................. 104,751 (104,751) $1.14
---------- --------- -----
Balances at December 31, 1997....... 649,282 1,508,426 $1.24
Authorized (unaudited)............ -- -- --
Options granted below fair value
(unaudited).................... (260,175) 260,175 $6.00
Options exercised (unaudited)..... -- (59,618) $0.69
Options canceled (unaudited)...... 6,079 (6,079) $3.84
---------- --------- -----
Balances at March 31, 1998.......... 395,186 1,702,904 $1.98
========== ========= =====
</TABLE>
Exercise prices for options outstanding as of December 31, 1997 ranged from
$0.60 to $5.00. The following table summarizes information about options
outstanding at December 31, 1997:
<TABLE>
<CAPTION>
OUTSTANDING OPTIONS
-------------------------------------------
NUMBER
REMAINING OF
EXERCISE NUMBER OF CONTRACTUAL OPTIONS
PRICES OPTIONS LIFE, IN YEARS EXERCISABLE
-------- --------- --------------- -----------
<S> <C> <C> <C>
$0.60...................... 1,089,619 8.64 257,697
$1.00...................... 3,800 9.32 --
$2.50...................... 315,416 9.34 19,921
$4.00...................... 74,800 9.65 5,817
$5.00...................... 24,800 9.95 --
--------- -------
1,508,426 283,435
========= =======
</TABLE>
From inception to December 31, 1997, options to purchase a total of
1,861,744 shares of common stock were granted at prices ranging from $0.60 to
$5.00 per share. Deferred compensation of $1,776,000 was recorded for these
option grants based on the deemed fair value of common stock (ranging from $1.20
to $6.50 per share). The Company amortized $528,000 of this balance during the
year ended December 31, 1997. In the first quarter of 1998, the Company granted
options to purchase 260,175 shares of common stock at $6.00 per share for which
deferred compensation of approximately $520,000 was recorded based on the deemed
fair value of common stock at $8.00 per share.
F-18
<PAGE> 91
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
7. STOCKHOLDERS' EQUITY -- (CONTINUED)
Pro Forma Information
Pro forma information regarding net loss and net loss per share is required
by SFAS 123, and has been determined as if the Company had accounted for its
employee stock options under the fair value method of that Statement. The fair
value for these options was estimated at the date of grant using a Black-Scholes
option pricing model with the following assumptions for 1996 and 1997,
respectively: risk-free interest rate of 6.65% and 6.46%; no dividend yield in
1996 or 1997; volatility factor of 0.68 and 0.67; and an expected life of the
option of five years in 1996 and 1997. These same assumptions were applied in
the determination of the option values related to stock options granted to
non-employees, which value has been recorded in the financial statements.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions, including the expected stock price
volatility. Because the Company's employee stock options have characteristics
significantly different from those of traded options, and because changes in the
subjective input assumptions can materially affect the fair value estimate, in
management's opinion, the existing models do not necessarily provide a reliable
single measure of the fair value of its employee stock options.
The weighted-average fair value of options granted during the years ended
December 31, 1996 and 1997 were $0.87 and $3.00 per share (all options were
granted at exercise prices below the deemed fair value of the underlying common
stock). The following table illustrates what net loss would have been had the
Company accounted for its stock-based awards under the provisions of SFAS 123.
Pro forma amounts may not be representative of future years.
<TABLE>
<CAPTION>
1996 1997
------- --------
(IN THOUSANDS,
EXCEPT PER SHARE
AMOUNTS)
<S> <C> <C>
Net loss:
As reported......................................... $(7,100) $(35,880)
------- --------
Pro forma........................................... $(7,190) $(36,103)
------- --------
Net loss per share:
As reported......................................... $ (1.89) $ (9.22)
------- --------
Pro forma........................................... $ (1.92) $ (9.27)
------- --------
</TABLE>
Stock Plans
In March 1998, the board of directors adopted the 1998 Employee Stock
Purchase Plan, the 1998 Director Option Plan and approved the amended and
restated 1996 Incentive Stock Plan, subject to stockholder approval. An
additional 500,000 shares of common stock have been reserved for issuance under
the amended and restated 1996 Incentive Stock Plan and 250,000 shares of common
stock have been reserved under both the 1998 Employee Stock Purchase Plan and
the 1998 Director Option Plan.
8. OTHER RELATED PARTY TRANSACTIONS
Through July 31, 1997, pursuant to the terms of the Service Agreement with
Cell Genesys, Cell Genesys provided Abgenix certain administrative services. In
addition, beginning July 15, 1996, the Company leased equipment from Cell
Genesys on a month-to-month basis pursuant to the Stock Purchase and Transfer
Agreement. Total fees incurred under the Services Agreement and the Stock
F-19
<PAGE> 92
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
8. OTHER RELATED PARTY TRANSACTIONS (CONTINUED)
Purchase and Transfer Agreement were approximately $1,816,000, $825,000 and
$107,000 in 1996, 1997, and the three months ended March 31, 1998, respectively.
The Company chose to draw down on its Promissory Note with Cell Genesys in order
to pay for the fees incurred through December 1997. In December 1997, the entire
principal amount of the Promissory Note was converted into preferred stock.
In addition, the Company had an agreement with Cell Genesys under which the
Company provided immunization services as requested by Cell Genesys. Under this
agreement, the Company recognized revenue of $100,375 and $111,000 in 1996 and
1997, respectively.
On December 31, 1996, the Company purchased Xenotech's remaining laboratory
equipment. The Company paid $154,360, which approximated net book value at the
time of purchase.
In July 1996, the Company assumed from Cell Genesys a $100,000 loan issued
to a Director and officer. The loan did not bear interest and was evidenced by a
promissory note secured by the common stock of Cell Genesys owned by the
Director and officer. The note was repaid in September 1997.
In May 1997, the Company granted a 10-year loan for $100,000 to an officer
of the Company. Interest is accrued per annum at 6.6% beginning May 2002. The
loan is payable in five equal installments beginning June 2003.
On February 27, 1998, the Chief Financial Officer and the Company entered
into a Relocation Loan Agreement pursuant to which Abgenix loaned $100,000 to
the Chief Financial Officer in exchange for a promissory note secured by a deed
of trust. No interest accrues on the loan until June 30, 2003.
9. INITIAL PUBLIC OFFERING
In March 1998, the board of directors authorized the filing of a
registration statement with the Securities and Exchange Commission permitting
Abgenix to sell shares of its common stock to the public. If the offering is
consummated under the terms presently anticipated, all of the currently
outstanding preferred stock will automatically convert into 7,844,352 shares of
common stock. Unaudited pro forma stockholders' equity, as adjusted for the
conversion of the preferred stock is set forth in the accompanying balance
sheets.
10. INCOME TAXES
As of December 31, 1997, the Company had federal net operating loss
carryforwards of approximately $15,400,000. The Company also had federal
research and development tax credit carryforwards of approximately $220,000 as
of December 31, 1997. The Company's net operating loss carryforwards exclude
losses incurred prior to the organization of Abgenix in July 1996. Further, the
amounts associated with the cross-license and settlement have been expensed for
financial statement accounting purposes and have been capitalized and will be
amortized over a period of approximately fifteen years for tax purposes. The net
operating loss and credit carryforwards will expire in the years 2011 through
2012, if not utilized.
Utilization of the net operating losses and credits may be subject to a
substantial annual limitation due to the "change in ownership" provisions of the
Internal Revenue Code of 1986 and similar state provisions. The annual
limitation may result in the expiration of net operating losses and credits
before utilization.
F-20
<PAGE> 93
ABGENIX, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
Significant components of the Company's deferred tax assets for federal and
state income taxes are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------
1996 1997
----- --------
(IN THOUSANDS)
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards..................... $ 700 $ 5,400
Research credit carryforwards........................ 100 400
Capitalized research and development................. 100 200
Capitalized cross-license and settlement............. -- 8,000
Other, net........................................... -- 400
----- --------
Net deferred tax assets................................ 900 14,400
Valuation allowance.................................... (900) (14,400)
----- --------
Total........................................ $ -- $ --
===== ========
</TABLE>
The net valuation allowance increased by $900,000 during the year ended
December 31, 1996. Deferred tax assets relate primarily to net operating loss
carryforwards and to the capitalization of the cross-license and settlement
agreement.
11. SUBSEQUENT EVENT (UNAUDITED)
Research License and Option Agreement with Genentech
In April 1998, Abgenix established a research collaboration with Genentech
to develop antibody products for an undisclosed antigen designated by Genentech
in the field of growth factor modulation. In June 1998, the Company and
Genentech expanded their collaboration to include a second undisclosed antigen
in the field of cardiovascular research. Under the research license and option
agreement, as amended, Abgenix will allow Genentech to use XenoMouse technology
to generate fully human antibodies to the antigen targets. Genentech is
obligated to make payments to Abgenix for performance of research activities.
In addition, the agreement provides Genentech with options, for a limited
time, to enter into product license agreements that provide Genentech with an
exclusive worldwide license, with respect to the antigen in the field of growth
factor modulation, and a license, with respect to the antigen in the field of
cardiovascular research, to develop, make, use and sell antibody products
derived from the research collaboration. If an option is exercised, a product
license agreement may provide Abgenix with up to approximately $5.5 million per
antigen target in license fees and milestone payments to be made upon completion
of certain milestones, including clinical trials and receipt of regulatory
approvals. Additionally, if a product receives marketing approval from the FDA
or an equivalent foreign agency, the Company is entitled to receive royalties on
future product sales by Genentech. Genentech will be responsible for
manufacturing, product development and marketing of any product developed
through the collaboration.
F-21
<PAGE> 94
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors
Xenotech, L.P.
We have audited the accompanying balance sheets of Xenotech, L.P. (a
development stage enterprise) as of December 31, 1996 and 1997, and the related
statements of operations, partners' capital and cash flows for each of the three
years in the period ended December 31, 1997 and for the period from inception
(June 12, 1991) to December 31, 1997. These financial statements are the
responsibility of the Partnership's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Xenotech, L.P. (a
development stage enterprise) at December 31, 1996 and 1997 and the results of
its operations and its cash flows for each of the three years ended December 31,
1997 and for the period from inception (June 12, 1991) to December 31, 1997, in
conformity with generally accepted accounting principles.
/S/ ERNST & YOUNG LLP
Palo Alto, California
January 23, 1998
F-22
<PAGE> 95
XENOTECH, L.P.
(A DEVELOPMENT STAGE ENTERPRISE)
BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------- MARCH 31,
1996 1997 1998
-------- -------- -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Cash.................................................... $ 292 $ 58 $ 52
Short-term investments.................................. -- 3,750 3,798
Prepaid expenses and other current assets............... 200 11 10
Receivable from partner................................. -- 3,750 3,783
-------- -------- --------
Total current assets.................................... $ 492 $ 7,569 $ 7,643
======== ======== ========
LIABILITIES AND PARTNERS' CAPITAL
Accrued liabilities..................................... $ 59 $ 56 $ 66
Payable related to cross-license and settlement
agreement............................................. -- 7,500 7,500
-------- -------- --------
Total current liabilities............................... 59 7,556 7,566
Partners' capital:
Paid-in capital....................................... 36,486 60,746 61,045
Deficit accumulated during the development stage...... (36,053) (60,733) (60,968)
-------- -------- --------
Total partners' capital................................. 433 13 77
-------- -------- --------
Total liabilities and partners' capital................. $ 492 $ 7,569 $ 7,643
======== ======== ========
</TABLE>
See accompanying notes.
F-23
<PAGE> 96
XENOTECH, L.P.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF OPERATIONS
(IN THOUSANDS)
<TABLE>
<CAPTION>
PERIOD FROM
THREE MONTHS ENDED INCEPTION
YEAR ENDED DECEMBER 31, MARCH 31, (JUNE 12, 1991)
---------------------------- ------------------- TO MARCH 31,
1995 1996 1997 1997 1998 1998
------- ------- -------- -------- -------- ---------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Research and license revenues from
partners................................. $ 4,747 $ 1,912 $ 272 $ 25 $ 210 $ 10,514
Expenses:
Research and development................. 11,270 8,240 2,396 215 438 47,547
General and administrative............... 656 307 98 15 7 1,646
Cross-license and settlement expense..... -- -- 22,470 7,470 -- 22,470
------- ------- -------- -------- -------- --------
Total expenses............................. 11,926 8,547 24,964 7,700 445 71,663
Interest income............................ 50 21 12 3 -- 181
------- ------- -------- -------- -------- --------
Net loss................................... $(7,129) $(6,614) $(24,680) $ (7,672) $ (235) $(60,968)
======= ======= ======== ======== ======== ========
</TABLE>
See accompanying notes.
F-24
<PAGE> 97
XENOTECH, L.P.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENT OF PARTNERS' CAPITAL
<TABLE>
<CAPTION>
LIMITED PARTNERS TOTAL
GENERAL ---------------------------------- PARTNERS'
PARTNER JAPAN TOBACCO INC. ABGENIX CAPITAL
------- ------------------ ------------ ---------
<S> <C> <C> <C> <C>
Capital contributed at inception....... $ 60 $ 4,750 $ -- $ 4,810
Capital distribution of interest
income.............................. -- -- (34) (34)
Net loss............................... (47) (4,705) 32 (4,720)
----- -------- -------- --------
Balance at December 31, 1991............. 13 45 (2) 56
Capital contribution................... 130 5,500 -- 5,630
Capital distribution of interest
income.............................. -- -- (1) (1)
Net loss............................... (55) (5,481) 4 (5,532)
----- -------- -------- --------
Balance at December 31, 1992............. 88 64 1 153
Capital contribution................... 12 6,800 700 7,512
Net loss............................... (75) (6,770) (607) (7,452)
----- -------- -------- --------
Balance at December 31, 1993............. 25 94 94 213
Capital contribution................... 40 5,000 -- 5,040
Net loss............................... (47) (4,780) 220 (4,607)
----- -------- -------- --------
Balance at December 31, 1994............. 18 314 314 646
Capital contribution................... 72 4,833 2,333 7,238
Net loss............................... (71) (4,779) (2,279) (7,129)
----- -------- -------- --------
Balance at December 31, 1995............. 19 368 368 755
Capital contribution................... 63 3,114 3,115 6,292
Net loss............................... (66) (3,274) (3,274) (6,614)
----- -------- -------- --------
Balance at December 31, 1996............. 16 208 209 433
Capital contribution................... 230 12,015 12,015 24,260
Net loss............................... (246) (12,217) (12,217) (24,680)
----- -------- -------- --------
Balance at December 31, 1997............. -- 6 7 13
Capital contribution (unaudited)....... 2 149 148 299
Net loss (unaudited)................... (2) (117) (116) (235)
----- -------- -------- --------
Balance at March 31, 1998 (unaudited).... $ -- $ 38 $ 39 $ 77
===== ======== ======== ========
</TABLE>
See accompanying notes.
F-25
<PAGE> 98
XENOTECH, L.P.
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
PERIOD
FROM
INCEPTION
THREE MONTHS ENDED (JUNE 12,
YEAR ENDED DECEMBER 31, MARCH 31, 1991) TO
-------------------------------------- -------------------- MARCH 31,
1995 1996 1997 1997 1998 1998
-------- ------- --------------- -------- -------- -----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING
ACTIVITIES
Net loss.................... $ (7,129) $(6,614) $(24,680) $ (7,672) $ (235) $(60,968)
Adjustments to reconcile net
loss to net cash used by
operating activities:
Charge for cross-license
and settlement.......... -- -- 3,735 -- -- 3,735
Depreciation and
amortization expense.... 71 74 8 8 -- 170
Changes in certain assets
and liabilities:
Decrease (increase) in
prepaid and other
current assets.......... (109) 108 181 156 1 145
Decrease (increase) in
receivable from
partner................. (30) 30 -- -- (33) (33)
Increase (decrease) in
accrued liabilities..... 292 (298) (3) (35) 10 65
Decrease in deferred
revenue................. (1,650) (250) -- -- -- --
Increase in payable for
cross-license and
settlement.............. -- -- 7,500 7,470 -- 7,500
-------- ------- -------- -------- -------- --------
Net cash used in operating
activities................ (8,555) (6,950) (13,259) (73) (256) (49,386)
-------- ------- -------- -------- -------- --------
CASH USED BY INVESTING
ACTIVITIES
Capital expenditures........ (62) -- -- -- -- (325)
Purchases of short-term
investments............... -- -- (3,750) -- (48) (3,798)
-------- ------- -------- -------- -------- --------
Net cash used by investing
activities................ (62) -- (3,750) -- (48) (4,123)
CASH FLOWS FROM FINANCING
ACTIVITIES
Capital contributions....... 7,237 6,292 16,775 198 299 53,561
-------- ------- -------- -------- -------- --------
NET INCREASE (DECREASE) IN
CASH...................... (1,380) (658) (234) 125 (6) 52
CASH AT BEGINNING OF
PERIOD.................... 2,330 950 292 292 58 --
-------- ------- -------- -------- -------- --------
CASH AT END OF PERIOD....... $ 950 $ 292 $ 58 $ 417 $ 52 $ 52
======== ======= ======== ======== ======== ========
</TABLE>
See accompanying notes.
F-26
<PAGE> 99
XENOTECH, L.P.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION AND BUSINESS
Xenotech, L.P., a California limited partnership and a development stage
enterprise (the "Partnership"), was organized on June 12, 1991 pursuant to a
Limited Partnership Agreement between Xenotech, Inc. (the "General Partner"),
Cell Genesys, Inc. ("Cell Genesys") and JT Immunotech USA, Inc., the predecessor
company of JT America, Inc. and a medical subsidiary of Japan Tobacco, Inc. ("JT
America"), (the "Limited Partners"), to develop genetically modified strains of
mice which can produce human monoclonal antibodies, and to commercialize
products generated therefrom. On July 15, 1996, Cell Genesys transferred its
partnership interest to its subsidiary, Abgenix Inc. ("Abgenix").
The General Partner must make cash contributions as necessary to maintain a
minimum capital balance of 1% of the total positive capital account balances for
the Partnership. Since July 1995, net losses are allocated 49.5% to Abgenix,
49.5% to JT America and 1% to the General Partner. Prior to July 1995, operating
expenses were allocated 99% to JT America and 1% to the General Partner until JT
America had been allocated, on a cumulative basis, partnership losses and
deductions in an amount equal to the sum of JT America's total research support
capital contributions and 50% of JT America's initial capital contribution.
Since 1992, interest income has been allocated 49.5% to Abgenix, 49.5% to JT
America and 1% to the General Partner. No allocation of expenses and losses
shall create a deficit in the Limited Partners' capital accounts. Such item, to
the extent it would increase or create such a deficit, shall be allocated 100%
to the General Partner. Cash distributions are generally to be made in
accordance with the percentage interests.
See related discussion in Note 3 -- Related Party Transactions.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Revenue Recognition
Research revenues from partners or their affiliates are recorded when
earned as defined under the terms of the respective collaboration agreements.
Payments received in advance under these agreements are recorded as deferred
revenue until earned (see Notes 3 and 4).
Depreciation
The Partnership depreciates equipment using the straight-line method over
the estimated useful lives of the assets, generally four years.
Income Taxes
The financial statements include no provision for income taxes as
Partnership income or loss is reported in the Partners' separate income tax
returns.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Interim Financial Information
The financial information at March 31, 1998 and for the three months ended
March 31, 1997 and 1998 is unaudited but includes all adjustments (consisting
only of normal recurring adjustments) which the Partnership considers necessary
for a fair presentation of the financial position at such date and the operating
results and cash flows for those periods. Results for the three months ended
F-27
<PAGE> 100
XENOTECH, L.P.
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
March 31, 1998 are not necessarily indicative of results for any other interim
period or for the entire year.
3. RELATED PARTY TRANSACTIONS
Abgenix provides contract research and development services to the
Partnership to develop genetically modified strains of mice which can produce
human monoclonal antibodies pursuant to a collaboration agreement under which
Abgenix receives certain minimum payments. During the years ended 1995, 1996 and
1997 and the quarters ended March 31, 1997 and 1998, the Partnership paid
Abgenix $5,300,000, $1,200,000, $2,300,000, $196,000 and $400,000, respectively
($41,600,000 for the period from inception to March 31, 1998) to perform
research.
In January 1994, the Partnership, Abgenix and JT America executed an
agreement creating the Xenotech Division within Abgenix to conduct ongoing
preclinical research of human monoclonal antibodies derived from the genetically
modified strains of mice. Abgenix and Japan Tobacco Inc. ("JT"), the indirect
parent company of JT America, are providing significant funding to the
Partnership for research funding and in consideration of the Partnership
granting marketing rights for specified products in certain territories to
Abgenix and JT (see Note 4). The Partnership reimbursed Abgenix for the costs of
the operation of the Xenotech Division. During 1995 and 1996, the Partnership
recognized expenses of $5,500,000 and $5,500,000, respectively ($13,300,000 for
the period from inception to December 31, 1997) which were paid to Abgenix for
the costs of operating the Xenotech Division.
Pursuant to an agreement dated June 28, 1996, the Xenotech Division was
terminated as of December 31, 1996. In conjunction with this agreement, Xenotech
paid Abgenix $1,200,000 to satisfy Xenotech's obligations under the Xenotech
Division Research Agreement. In addition, Abgenix purchased Xenotech's capital
equipment at net book value, and was assigned Xenotech's note receivable, which
was reflected as a reduction of capital contributions.
4. RESEARCH REVENUES
The Partnership recorded research and license revenues of $4,700,000,
$1,900,000 and $272,000 for the years ended December 31, 1995, 1996 and 1997,
respectively. For the quarters ended March 31, 1997 and 1998 the amount recorded
was $25,000 and $210,000, respectively. The research revenues were derived from
research payments made by JT and Abgenix. Of research payments made by JT and
Abgenix, $250,000 was deferred revenue at December 31, 1995.
5. CROSS-LICENSE AND SETTLEMENT AGREEMENT
On March 27, 1997, Cell Genesys announced, along with Abgenix, Xenotech and
Japan Tobacco, that it had signed a comprehensive patent cross-license and
settlement agreement with GenPharm, International, Inc., a subsidiary of
Medarex, Inc. ("GenPharm") that resolved all related litigation and claims
between the parties. As initial consideration for the cross-license and
settlement agreement, Cell Genesys issued a note to GenPharm due September 30,
1998 for $15,000,000 payable by Cell Genesys and convertible into shares of Cell
Genesys common stock, currently at $8.62 per share. Of this note, $3,750,000
satisfied certain of Xenotech's obligations under the agreement. Japan Tobacco
also made an initial payment. During 1997, two patent milestones were achieved
and Xenotech was obligated to pay $7,500,000 for each milestone. Xenotech paid
$7,500,000 to satisfy the first milestone and has recorded a payable to GenPharm
for the remaining $7,500,000. The payable is due on or before November 1998. No
additional payments will accrue under this agreement. Xenotech has recognized as
a non-recurring charge for cross-license and settlement, a total of $22,500,000.
F-28
<PAGE> 101
[ARTWORK]
ABX-CBL is an antibody in clinical trials for the treatment of Graft Versus Host
Disease (GVHD). ABX-CBL selectively destroys activated immune cells that are
involved in GVHD by binding to the CBL antigen. Abgenix believes that ABX-CBL
has the ability to destroy activated immune cells without adversely affecting
the entire immune system.
- --------------------------------------------------------------------------------
All of the Company's product candidates are at early stages of research
and development and have not been approved for sale in the United States
by the United States Food and Drug Administration ("FDA"), and therefore,
no sales have been generated. Approval of the Company's product candidates
by the FDA or corresponding European regulatory authorities could take
several years and there can be no assurance that such approval will ever
be obtained. See "Risk Factors -- Uncertainty Associated with XenoMouse
Technology," "-- No Assurance of Successful Product Development" and
"-- Uncertainties Related to Clinical Trials."
- --------------------------------------------------------------------------------
<PAGE> 102
LOGO
<PAGE> 103
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all fees and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the issuance and sales of the Common Stock being registered. All of the
amounts shown are estimates except for the SEC registration fee, the NASD filing
fee and the Nasdaq National Market Listing fee.
<TABLE>
<CAPTION>
AMOUNT
TO BE PAID
----------
<S> <C>
SEC Registration Fee........................................ $ 12,213
NASD Filing Fee............................................. 4,640
The Nasdaq National Market Listing Fee...................... 82,000
Blue Sky Qualification Fees and Expenses.................... 10,000
Printing and Engraving Expenses............................. 130,000
Legal Fees and Expenses..................................... 350,000
Accounting Fees and Expenses................................ 150,000
Transfer Agent and Registrar Fees and Expenses.............. 10,000
Miscellaneous Expenses...................................... 1,147
--------
TOTAL.................................................. $750,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law allows for the
indemnification of officers, directors and any corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended (the "Act"). The Registrant's Amended and
Restated Certificate of Incorporation to be filed upon the closing of the
offering to which this Registration Statement relates (Exhibit 3.3 hereto) and
the Registrant's Bylaws (Exhibit 3.4 hereto) provides for indemnification of the
Registrant's directors, officers, employees and other agents to the extent and
under the circumstances permitted by the Delaware General Corporation Law. The
Registrant also intends to enter into agreements with its directors and
executive officers that will require the Registrant among other things to
indemnify them against certain liabilities that may arise by reason of their
status or service as directors and executive officers to the fullest extent not
prohibited by Delaware law. The Company has also purchased directors and
officers liability insurance, which provides coverage against certain
liabilities including liabilities under the Act.
The Underwriting Agreement provides for indemnification by the Underwriters
of the Registrant, and its directors and officers for certain liabilities,
including liabilities arising under the Act, and affords certain rights of
contribution with respect thereto.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(a) Since the Company's incorporation (June 24, 1996), the Registrant has
issued and sold the following unregistered securities:
(1) On July 15, 1996, the Registrant issued 1,691,667 shares of Series
A Senior Convertible Preferred Stock to Cell Genesys in exchange for $10
million.
(2) On July 15, 1996, the Registrant issued 2,058,333 shares of Series
1 Subordinated Convertible Preferred Stock to Cell Genesys, and in
exchange, Cell Genesys contributed research, development and manufacturing
technology, as well as patents and other intellectual property
II-1
<PAGE> 104
specific to the antibody therapy programs to be pursued by the Company,
including Cell Genesys's interest in its joint venture with Japan Tobacco
Inc.
(3) On July 15, 1996, the Registrant, in exchange for a loan in the
principal amount of up to $4,000,000, issued a Convertible Promissory Note
to Cell Genesys convertible at an exercise price per share of $6.00 into up
to 666,667 shares of Series A Convertible Preferred Stock.
(4) From July 15, 1996 to March 31, 1998, the Registrant has granted
options to purchase 2,121,919 shares of Common Stock to employees,
directors and consultants under the 1996 Plan at exercise prices ranging
from $0.60 to $6.00 per share. Of the 2,121,919 shares granted, 1,702,904
remain outstanding, 293,160 shares of Common Stock have been purchased
pursuant to exercises of stock options or stock purchase rights under the
1996 Plan and 125,855 shares have been canceled and returned to the 1996
Plan.
(5) On January 23, 1997 and March 27, 1997, the Registrant issued two
warrants to purchase an aggregate of 121,667 shares of Series A Senior
Convertible Preferred Stock (convertible into 121,667 shares of Common
Stock) to Cell Genesys with a weighted average exercise price per share of
$6.00.
(6) On December 23, 1997, the Registrant issued 3,267,685 shares of
Series B Preferred Stock to 29 accredited or institutional purchasers at a
purchase price per share of $6.50. In connection with and contemporaneous
to this transaction the 1,691,667 shares of Series A Senior Convertible
Preferred Stock, the 2,058,333 shares of Series 1 Subordinated Convertible
Preferred Stock and the $4,000,000 Convertible Promissory Note issued to
Cell Genesys, described above, were all converted into an aggregate
4,416,667 shares of Series A Convertible Preferred Stock.
(7) On January 12, 1998, the Registrant issued 160,000 shares of
Series C Preferred Stock to Pfizer at a per share purchase price of $8.00.
This issuance was in connection with a collaborative arrangement entered
into between the Registrant and Pfizer.
The sales and issuances of securities in the transactions described above
were deemed to be exempt from registration under the Securities Act in reliance
upon Section 4(2) of the Securities Act, Regulation D promulgated thereunder, or
Rule 701 promulgated under Section 3(b) of the Securities Act, as transactions
by an issuer not involving any public offering or transactions pursuant to
compensatory benefit plans and contracts relating to compensation as provided
under Rule 701. The recipients of securities in each such transaction
represented their intentions to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the securities issued in such transactions.
All recipients had adequate access, through their relationship with the Company,
to information about the Registrant.
(b) There were no underwritten offerings employed in connection with any of
the transactions set forth in Item 15(a).
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
1.1 * Form of Underwriting Agreement.
3.1 * Certificate of Incorporation of the Registrant, as currently
in effect.
3.2 * Certificate of Designations of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock.
3.3 * Form of Amended and Restated Certificate of Incorporation of
the Registrant, to be filed immediately following the
closing of the offering made under this Registration
Statement.
3.4 * Bylaws of the Registrant, as currently in effect.
3.5 * Form of Amended and Restated Bylaws of the Registrant, to be
adopted immediately following the closing of the offering
made under this Registration Statement.
4.1 * Specimen Common Stock Certificate.
</TABLE>
II-2
<PAGE> 105
<TABLE>
<C> <S>
5.1 * Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1 * Form of Indemnification Agreement between the Registrant and
each of its directors and officers.
10.2 * 1996 Incentive Stock Plan and form of agreement thereunder.
10.3 * 1998 Employee Stock Purchase Plan and form of agreement
thereunder.
10.4 * 1998 Director Option Plan and form of agreement thereunder.
10.5 * Warrant dated January 23, 1997 exercisable for shares of
Series A Preferred Stock.
10.6 * Warrant dated March 27, 1997 exercisable for shares of
Series A Preferred Stock.
+10.7(1) * Joint Venture Agreement dated June 12, 1991 between Cell
Genesys and JT Immunotech USA Inc.
+10.7A(4) * Amendment No. 1 dated January 1, 1994 to Joint Venture
Agreement.
+10.7B(7) * Amendment No. 2 dated June 28, 1996 to Joint Venture
Agreement.
+10.8(1) * Collaboration Agreement dated June 12, 1991 among Cell
Genesys, Xenotech, Inc. and JT Immunotech USA Inc.
+10.8A(3) * Amendment No. 1 dated June 30, 1993 to Collaboration
Agreement.
10.8B(11) * Amendment No. 2 dated January 1, 1994 to Collaboration
Agreement.
+10.8C(5) * Amendment No. 3 dated July 1, 1995 to Collaboration
Agreement.
+10.8D(7) * Amendment No. 4 dated June 28, 1996 to Collaboration
Agreement.
+10.8E * Amendment No. 5 dated November 1997 to Collaboration
Agreement.
+10.9(1) * Limited Partnership Agreement dated June 12, 1991 among Cell
Genesys, Xenotech, Inc. and JT Immunotech USA Inc.
+10.9A(4) * Amendment No. 2 dated January 1, 1994 to Limited Partnership
Agreement.
10.9B(6) * Amendment No. 3 dated July 1, 1995 to Limited Partnership
Agreement.
10.9C(8) * Amendment No. 4 dated June 28, 1996 to Limited Partnership
Agreement.
10.10(2) * Field License dated June 12, 1991 among Cell Genesys, JT
Immunotech USA Inc. and Xenotech, L.P.
10.10A(8) * Amendment No. 1 dated March 22, 1996 to Field License.
10.10B(8) * Amendment No. 2 dated June 28, 1996 to Field License.
+10.11(1) * Expanded Field License dated June 12, 1991 among Cell
Genesys, JT Immunotech USA Inc. and Xenotech, L.P.
10.11A(8) * Amendment No. 1 dated June 28, 1996 to Expanded Field
License.
+10.12 * Amended and Restated Anti-IL-8 License Agreement dated March
19, 1996 among Xenotech, L.P., Cell Genesys and Japan
Tobacco Inc.
+10.13(7) * Master Research License and Option Agreement dated June 28,
1996 among Cell Genesys, Japan Tobacco Inc. and Xenotech,
L.P.
+10.13A * Amendment No. 1 dated November 1997 to the Master Research
License and Option Agreement.
+10.14 * Stock Purchase and Transfer Agreement dated July 15, 1996 by
and between Cell Genesys and the Registrant.
10.15 * Governance Agreement dated July 15, 1996 between Cell
Genesys and the Registrant.
10.15A * Amendment No. 1 dated October 13, 1997 to the Governance
Agreement.
10.15B * Amendment No. 2 dated December 22, 1997 to the Governance
Agreement.
10.16 * Tax Sharing Agreement dated July 15, 1996 between Cell
Genesys and the Registrant.
+10.17 Gene Therapy Rights Agreement effective as of November 1,
1997 between the Registrant and Cell Genesys.
+10.18 * Patent Assignment Agreement dated July 15, 1996 by Cell
Genesys in favor of the Registrant.
</TABLE>
II-3
<PAGE> 106
<TABLE>
<C> <S>
10.19(9) * Lease Agreement dated July 31, 1996 between John Arrillaga,
Trustee, or his Successor Trustee, UTA dated 7/20/77
(Arrillaga Family Trust) as amended, and Richard T. Peery,
Trustee, or his Successor Trustee, UTA dated 7/20/77
(Richard T. Peery Separate Property Trust) as amended, and
the Registrant.
10.20 * Loan and Security Agreement dated January 23, 1997 between
Silicon Valley Bank and the Registrant.
10.21 * Master Lease Agreement dated March 27, 1997 between
Transamerica Business Credit Corporation and the Registrant.
+10.22 License Agreement dated February 1, 1997 between Ronald J.
Billing, Ph.D. and the Registrant.
+10.23(10) * Release and Settlement Agreement dated March 26, 1997 among
Cell Genesys, the Registrant, Xenotech, L.P., Japan Tobacco
Inc. and GenPharm International, Inc.
+10.24(10) * Cross License Agreement effective as of March 26, 1997,
among Cell Genesys, the Registrant, Xenotech, L.P., Japan
Tobacco Inc. and GenPharm International, Inc.
+10.25(10) * Interference Settlement Procedure Agreement, effective as of
March 26, 1997, among Cell Genesys, the Registrant,
Xenotech, L.P., Japan Tobacco Inc. and GenPharm
International, Inc.
+10.26 * Agreement dated March 26, 1997 among Xenotech, L.P.,
Xenotech, Inc., Cell Genesys, the Registrant, Japan Tobacco
Inc. and JT Immunotech USA Inc.
+10.27 Collaborative Research Agreement dated December 22, 1997
between Pfizer, Inc. and the Registrant.
10.28 * Amended and Restated Stockholder Rights Agreement dated
January 12, 1998 among the Registrant and certain holders of
the Registrant's capital stock.
+10.29 Collaborative Research Agreement effective as of January 28,
1998 between Schering-Plough Research Institute and the
Registrant.
10.30 * Excerpts from the Minutes of a Meeting of the Board of
Directors of the Registrant, dated October 23, 1996.
10.31 * Excerpts from the Minutes of a Meeting of the Board of
Directors of the Registrant, dated October 22, 1997.
+10.32 Exclusive Worldwide Product License dated November 1997
between Xenotech, L.P. and the Registrant.
+10.33 Research License and Option Agreement effective as of April
6, 1998 between the Registrant and Genentech, Inc.
+10.33A Amendment No. 1 effective as of June 18, 1998 to Research
License and Option Agreement between the Registrant and
Genentech, Inc.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 * Consent of Counsel.
24.1 * Power of Attorney.
27.1 * Financial Data Schedule.
</TABLE>
- ---------------
* Previously filed.
+ Confidential treatment requested for portions of these exhibits. Omitted
portions have been filed separately with the Commission.
(1) Incorporated by reference to the same exhibit filed with Cell Genesys's
Registration Statement on Form S-1 (File No. 33-46452), portions of which
have been granted confidential treatment.
(2) Incorporated by reference to the same exhibit filed with Cell Genesys's
Registration Statement on Form S-1 (File No. 33-46452).
(3) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993, portions
of which have been granted confidential treatment.
(4) Incorporated by reference to the same exhibit filed with Cell Genesys's
Annual Report on Form 10-K for the year ended December 31, 1993, portions
of which have been granted confidential treatment.
II-4
<PAGE> 107
(5) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995, portions
of which have been granted confidential treatment.
(6) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995.
(7) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996, portions
of which have been granted confidential treatment.
(8) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996.
(9) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly report on Form 10-Q for the quarter ended September 30, 1996.
(10)Incorporated by reference to the same exhibit filed with Cell Genesys's
Annual Report on Form 10-K for the year ended December 31, 1996, as
amended, portions of which have been granted confidential treatment.
(11) Incorporated by reference to the same exhibit filed with Cell Genesys's
Annual Report on Form 10-K for the year ended December 31, 1993.
(b) Financial Statement Schedules:
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS
Insofar as indemnification by the Registrant for liabilities arising under
the Act may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(a) It will provide to the Underwriters at the closing as specified in the
Underwriting Agreement certificates in such denominations and registered in such
names as required by the Underwriters to permit prompt delivery to each
purchaser.
(b) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of a registration
statement in reliance upon Rule 430A and contained in the form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Act shall be deemed to be part of the registration statement as of the time it
was declared effective.
(c) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-5
<PAGE> 108
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 7 to the Registration Statement on
Form S-1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fremont, State of California, on the 29th day of
June, 1998.
ABGENIX, INC.
By: /s/ R. SCOTT GREER
------------------------------------
R. Scott Greer
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 7 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ R. SCOTT GREER President, Chief Executive Officer and June 29, 1998
- --------------------------------------------- Director (Principal Executive Officer)
R. Scott Greer
/s/ KURT W. LEUTZINGER Vice President, Finance and Chief June 29, 1998
- --------------------------------------------- Financial Officer (Principal Financial
Kurt W. Leutzinger and
Accounting Officer)
*STEPHEN A. SHERWIN, M.D. Chairman of the Board June 29, 1998
- ---------------------------------------------
Stephen A. Sherwin, M.D.
*M. KATHLEEN BEHRENS, PH.D. Director June 29, 1998
- ---------------------------------------------
M. Kathleen Behrens, Ph.D.
*RAJU S. KUCHERLAPATI, PH.D. Director June 29, 1998
- ---------------------------------------------
Raju S. Kucherlapati, Ph.D.
*MARK B. LOGAN Director June 29, 1998
- ---------------------------------------------
Mark B. Logan
*JOSEPH E. MAROUN Director June 29, 1998
- ---------------------------------------------
Joseph E. Maroun
*By: /s/ R. SCOTT GREER
---------------------------------------
R. Scott Greer
(Attorney-In-Fact)
</TABLE>
II-6
<PAGE> 109
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------------ -----------------------------------------------------------
<C> <S> <C>
1.1 * Form of Underwriting Agreement.
3.1 * Certificate of Incorporation of the Registrant, as
currently in effect.
3.2 * Certificate of Designations of Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock.
3.3 * Form Restated Certificate of Incorporation of the
Registrant, to be filed immediately following the closing
of the offering made under this Registration Statement.
3.4 * Bylaws of the Registrant, as currently in effect.
3.5 * Form of Amended and Restated Bylaws of the Registrant, to
be adopted immediately following the closing of the
offering made under this Registration Statement.
4.1 * Specimen Common Stock Certificate.
5.1 * Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1 * Form of Indemnification Agreement between the Registrant
and each of its directors and officers.
10.2 * 1996 Incentive Stock Plan and form of agreement thereunder.
10.3 * 1998 Employee Stock Purchase Plan and form of agreement
thereunder.
10.4 * 1998 Director Option Plan and form of agreement thereunder.
10.5 * Warrant dated January 23, 1997 exercisable for shares of
Series A Preferred Stock.
10.6 * Warrant dated March 27, 1997 exercisable for shares of
Series A Preferred Stock.
+10.7(1) * Joint Venture Agreement dated June 12, 1991 between Cell
Genesys and JT Immunotech USA Inc.
+10.7A(4) * Amendment No. 1 dated January 1, 1994 to Joint Venture
Agreement.
+10.7B(7) * Amendment No. 2 dated June 28, 1996 to Joint Venture
Agreement.
+10.8(1) * Collaboration Agreement dated June 12, 1991 among Cell
Genesys, Xenotech, Inc. and JT Immunotech USA Inc.
+10.8A(3) * Amendment No. 1 dated June 30, 1993 to Collaboration
Agreement.
10.8B(11) * Amendment No. 2 dated January 1, 1994 to Collaboration
Agreement.
+10.8C(5) * Amendment No. 3 dated July 1, 1995 to Collaboration
Agreement.
+10.8D(7) * Amendment No. 4 dated June 28, 1996 to Collaboration
Agreement.
+10.8E * Amendment No. 5 dated November 1997 to Collaboration
Agreement.
</TABLE>
<PAGE> 110
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------------ -----------------------------------------------------------
<C> <S> <C>
+10.9(1) * Limited Partnership Agreement dated June 12, 1991 among
Cell Genesys, Xenotech, Inc. and JT Immunotech USA Inc.
+10.9A(4) * Amendment No. 2 dated January 1, 1994 to Limited
Partnership Agreement.
10.9B(6) * Amendment No. 3 dated July 1, 1995 to Limited Partnership
Agreement.
10.9C(8) * Amendment No. 4 dated June 28, 1996 to Limited Partnership
Agreement.
10.10(2) * Field License dated June 12, 1991 among Cell Genesys, JT
Immunotech USA Inc. and Xenotech, L.P.
10.10A(8) * Amendment No. 1 dated March 22, 1996 to Field License.
10.10B(8) * Amendment No. 2 dated June 28, 1996 to Field License.
+10.11(1) * Expanded Field License dated June 12, 1991 among Cell
Genesys, JT Immunotech USA Inc. and Xenotech, L.P.
10.11A(8) * Amendment No. 1 dated June 28, 1996 to Expanded Field
License.
+10.12 * Amended and Restated Anti-IL-8 License Agreement dated
March 19, 1996 among Xenotech, L.P., Cell Genesys and Japan
Tobacco Inc.
+10.13(7) * Master Research License and Option Agreement dated June 28,
1996 among Cell Genesys, Japan Tobacco Inc. and Xenotech,
L.P.
+10.13A * Amendment No. 1 dated November 1997 to the Master Research
License and Option Agreement.
+10.14 * Stock Purchase and Transfer Agreement dated July 15, 1996
by and between Cell Genesys and the Registrant.
10.15 * Governance Agreement dated July 15, 1996 between Cell
Genesys and the Registrant.
10.15A * Amendment No. 1 dated October 13, 1997 to the Governance
Agreement.
10.15B * Amendment No. 2 dated December 19, 1997 to the Governance
Agreement.
10.16 * Tax Sharing Agreement dated July 15, 1996 between Cell
Genesys and the Registrant.
+10.17 Gene Therapy Rights Agreement effective as of November 1,
1997 between the Registrant and Cell Genesys.
+10.18 * Patent Assignment Agreement dated July 15, 1996 by Cell
Genesys in favor of the Registrant.
10.19(9) * Lease Agreement dated July 31, 1996 between John Arrillaga,
Trustee, or his Successor Trustee, UTA dated 7/20/77
(Arrillaga Family Trust) as amended, and Richard T. Peery,
Trustee, or his Successor Trustee, UTA dated 7/20/77
(Richard T. Peery Separate Property Trust) as amended, and
the Registrant.
10.20 * Loan and Security Agreement dated January 23, 1997 between
Silicon Valley Bank and the Registrant.
</TABLE>
<PAGE> 111
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------------ -----------------------------------------------------------
<C> <S> <C>
10.21 * Master Lease Agreement dated March 27, 1997 between
Transamerica Business Credit Corporation and the
Registrant.
+10.22 License Agreement dated February 1, 1997 between Ronald J.
Billing, Ph.D. and the Registrant.
+10.23(10) * Release and Settlement Agreement dated March 26, 1997 among
Cell Genesys, the Registrant, Xenotech, L.P., Japan Tobacco
Inc. and GenPharm International, Inc.
+10.24(10) * Cross License Agreement effective as of March 26, 1997,
among Cell Genesys, the Registrant, Xenotech, L.P., Japan
Tobacco Inc. and GenPharm International, Inc.
+10.25(10) * Interference Settlement Procedure Agreement, effective as
of March 26, 1997, among Cell Genesys, the Registrant,
Xenotech, L.P., Japan Tobacco Inc. and GenPharm
International, Inc.
+10.26 * Agreement dated March 26, 1997 among Xenotech, L.P.,
Xenotech, Inc., Cell Genesys, the Registrant, Japan Tobacco
Inc. and JT Immunotech USA Inc.
+10.27 Collaborative Research Agreement dated December 22, 1997
between Pfizer, Inc. and the Registrant.
10.28 * Amended and Restated Stockholder Rights Agreement dated
January 12, 1998 among the Registrant and certain holders
of the Registrant's capital stock.
+10.29 Collaborative Research Agreement effective as of January
28, 1998 between Schering-Plough Research Institute and the
Registrant.
10.30 * Excerpts from the Minutes of a Meeting of the Board of
Directors of the Registrant, dated October 23, 1996.
10.31 * Excerpts from the Minutes of a Meeting of the Board of
Directors of the Registrant, dated October 22, 1997.
+10.32 Exclusive Worldwide Product License dated November 1997
between Xenotech, L.P. and the Registrant.
+10.33 Research License and Option Agreement effective as of April
6, 1998 between the Registrant and Genentech, Inc.
+10.33A Amendment No. 1 effective as of June 18, 1998 to Research
License and Option Agreement between the Registrant and
Genentech, Inc.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 * Consent of Counsel.
24.1 * Power of Attorney (see page II-6).
27.1 * Financial Data Schedule.
</TABLE>
- ---------------
* Previously filed.
+ Confidential treatment requested for portions of these exhibits. Omitted
portions have been filed separately with the Commission.
(1) Incorporated by reference to the same exhibit filed with Cell Genesys's
Registration Statement on Form S-1 (File No. 33-46452), portions of which
have been granted confidential treatment.
<PAGE> 112
(2) Incorporated by reference to the same exhibit filed with Cell Genesys's
Registration Statement on Form S-1 (File No. 33-46452).
(3) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993, portions
of which have been granted confidential treatment.
(4) Incorporated by reference to the same exhibit filed with Cell Genesys's
Annual Report on Form 10-K for the year ended December 31, 1993, portions
of which have been granted confidential treatment.
(5) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995, portions
of which have been granted confidential treatment.
(6) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995.
(7) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996, portions
of which have been granted confidential treatment.
(8) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996.
(9) Incorporated by reference to the same exhibit filed with Cell Genesys's
Quarterly report on Form 10-Q for the quarter ended September 30, 1996.
(10) Incorporated by reference to the same exhibit filed with Cell Genesys's
Annual Report on Form 10-K for the year ended December 31, 1996, as
amended, portions of which have been granted confidential treatment.
(11) Incorporated by reference to the same exhibit filed with Cell Genesys's
Annual Report on Form 10-K for the year ended December 31, 1993.
<PAGE> 1
EXHIBIT 10.17
CONFIDENTIAL TREATMENT REQUESTED BY ABGENIX, INC.
GENE THERAPY RIGHTS AGREEMENT
This Gene Therapy Rights Agreement (the "Agreement"), effective as of
November 1, 1997 (the "Effective Date") is made by and among Cell Genesys, Inc.,
a Delaware corporation ("CGI") and Abgenix, Inc., a Delaware corporation
("ABX").
RECITALS
A. Xenotech, L.P. ("XT") is a limited partnership formed in June 1991 by JT
Immunotech USA Inc. ("JT Immunotech"), a wholly-owned indirect subsidiary of
Japan Tobacco, Inc. ("JTI"), and CGI to research, create and develop transgenic
mice that make human antibodies when immunized with antigens (as defined below,
"Mice").
B. Pursuant to that certain Stock Purchase and Transfer Agreement effective
July 15, 1996, CGI assigned to ABX certain of its rights in and to XT, including
rights relating to the use and commercialization of the Mice pursuant to the
terms of the MRLOA (as that term is defined below).
C. CGI and ABX have entered into certain other agreements which relate to
ABX's interest in XT and the use and exploitation of the Mice and products
generated from the Mice, including without limitation the Gene Therapy Rights
Agreement effective as of July 15, 1996, the Voting Agreement effective as of
July 15, 1996, and the Immunization Services Agreement effective as of July 15,
1996.
D. CGI has also entered into the Universal Receptor License Option
Agreement with XT, effective June 28, 1996 (the "URLOA"), which grants CGI the
option to enter into license agreements with XT regarding the use of the Mice
for generation of antibodies for use in universal receptor products.
E. CGI and ABX now desire to restructure the agreements existing between
them and certain agreements with XT.
NOW THEREFORE, for and in consideration of the covenants, conditions, and
undertakings hereinafter set forth, it is agreed by and between the parties as
follows:
1. DEFINITIONS
For purposes of this Agreement, the terms set forth in this Article shall
have the meanings set forth below:
1.1 "ABX-Controlled Rights" shall mean all rights to patents or technology
(including biological materials) that are licensed to ABX pursuant to (i) the
MRLOA, (ii) Product Licenses
<PAGE> 2
from XT for Covered Products related to CGI Antigens, or (iii) any other license
or similar agreement granting ABX rights to patents or technology to the extent,
and only to the extent, that such patent or technology is reasonably necessary
to exercise the rights in (i) and (ii) to make, have made, use, sell, offer to
sell, or import Covered Products in the field of Gene Therapy (each such
agreement being referred to as an "ABX In-License"), in each case to the extent
that ABX has the right under the terms of the applicable ABX In-License to
further license or sublicense such rights during the term of this Agreement;
provided, however, that "ABX-Controlled Rights" shall not include Antigen
Specific Technology. Exhibit D lists the ABX- Controlled Rights as of the
Effective Date.
1.2 "ABX Proprietary Antigen" shall mean a specifically identified Antigen
for which an issued patent, or a pending patent application being prosecuted in
good faith in the United States or Europe, which patent or application is owned
or controlled by ABX prior to CGI's exercise of its Option with respect to such
Antigen in accordance with Article 2 below, contains claims to the following:
(i) the composition of such specifically identified Antigen or Genetic Material
encoding the Antigen, (ii) a method of therapeutic use of an Antibody or other
moiety which binds to such specifically identified Antigen, or (iii) the
composition of an antibody to such Antigen (excluding compositions of antibodies
resulting from immunization services under Article 3 of this Agreement).
1.3 "ABX Territory" shall mean the United States and its territories, and
Canada and Mexico.
1.4 "Affiliate" shall mean any entity which controls, is controlled by or
is under common control with ABX, CGI or a Sublicensee. An entity shall be
regarded as in control of another entity if it owns or controls at least fifty
percent (50%) of the shares of the subject entity entitled to vote in the
election of directors (or, in the case of an entity that is not a corporation,
for the election of the corresponding managing authority). As used herein, a
"Wholly-Owned Subsidiary" shall mean an Affiliate in which ABX owns or controls
one hundred percent (100%) of such shares in such Affiliate. Notwithstanding the
foregoing, neither ABX, CGI, JTI nor XT shall be considered to control, be
controlled by, be under common control with, or be an Affiliate of the other for
purposes of this Agreement.
1.5 "Antibody" shall mean a composition comprising a whole antibody or
fragment thereof, said antibody or fragment having been generated from the Mice
or Future Generation Mice or having been derived from nucleotide sequences
encoding, or amino acid sequences of, such an antibody or fragment.
1.6 "Antibody Product" shall mean any product comprising an Antibody or
Genetic Material encoding an Antibody wherein, in respect of each Antibody
Product, said Genetic Material does not encode multiple Antibodies.
1.7 "Antigen" shall have the meaning set forth in the MRLOA.
-2-
<PAGE> 3
1.8 "Antigen Invention" shall mean intellectual property rights in and to
patentable inventions (including patent and patent applications) which both (i)
include claims to the following:
(A) the composition of matter of Antigens, or Genetic Materials (if
any) encoding such Antigens (or fragments, hybrids, or homologues
of such Genetic Materials or such Antigens);
(B) the composition of matter of Antibodies which bind to the
Antigen, or Genetic Materials encoding such Antibodies (or
fragments, hybrids or homologues of such Genetic Materials or
such Antibodies), and cells that express or secrete such
Antibodies;
(C) methods of treatment of humans using antibodies that bind to the
Antigen or Genetic Materials encoding such antibodies; or
(D) antibodies that bind to the Antigen, or Genetic Materials
encoding such antibodies (or any uses of such antibodies or
Genetic Material);
and (ii) wherein, but for a license thereto, such claims would be
infringed by the manufacture, use, sale, offer for sale, or import of
Antibody Products to such Antigen.
1.9 "Antigen-Specific Technology" shall mean any intellectual property or
technology or other proprietary rights of ABX in or to ABX Proprietary Antigens,
including: (i) compositions of such Antigens and Genetic Materials encoding such
Antigens; (ii) uses of such Antigens; (iii) antibodies that bind to such
Antigens and Genetic Materials encoding such antibodies, and cells that express
or secrete such antibodies; and (iv) uses of antibodies to such Antigens;
provided, however, that Antigen-Specific Technology shall not include rights in
and to such intellectual property created in connection with the performance of
services for CGI under Article 3 of this Agreement to the extent such
intellectual property is reasonably necessary for CGI to make, use, sell, or
otherwise exploit Covered Products in accordance with a CGI Product Sublicense.
Antigen-Specific Technology shall also include methods to discover novel
Antigens and methods of using Antigens other than to create Antibodies pursuant
to this Agreement.
1.10 "Buy-In Right" shall mean the right of ABX or JTI under the terms of
the MRLOA to obtain an option for an Exclusive Home Territory Product License
with respect to an Antigen that has been Selected by the other.
1.11 "CGI Antigen" shall mean an Antigen which ABX has Selected upon the
request of CGI as provided in Section 2.2 below or for which ABX has exercised
its Buy-In Rights upon the request of CGI as provided in Section 2.3 below.
1.12 "CGI Product Sublicense" shall mean a sublicense, in the form attached
hereto as Exhibit B, to be granted by ABX to CGI pursuant to Section 2.6 of this
Agreement.
-3-
<PAGE> 4
1.13 "CGI Proprietary Antigen" shall mean a specifically identified Antigen
for which an issued patent, or a pending patent application being prosecuted in
good faith in the United States or Europe, which patent or application is owned
or controlled by CGI prior to CGI's exercise of its Option with respect to such
Antigen in accordance with Article 2 below, contains claims to the following:
(i) the composition of such specifically identified Antigen or Genetic Material
encoding the Antigen, (ii) a method of therapeutic use of an antibody or other
moiety which binds to such specifically identified Antigen, or (iii) the
composition of an antibody to such Antigen (excluding compositions of antibodies
resulting from immunization services under Article 3 of this Agreement).
1.14 "Covered Product" shall mean any Antibody Product which incorporates
(i) an Antibody which binds to a particular Antigen or (ii) Genetic Material
encoding such an Antibody wherein said Genetic Material does not encode multiple
Antibodies. If ABX acquires the right to sell (and the right to sublicense the
right to sell) any other product derived through immunization of Mice or Future
Generation Mice, whether by amendment of the MRLOA or otherwise, such products
shall be included in the definition of Covered Product under this Agreement and
shall be incorporated in the definition of Product under CGI Product Sublicenses
entered into pursuant to this Agreement.
1.15 "Future Generation Mice" shall have the meaning set forth in the
MRLOA.
1.16 "Genetic Material" shall mean a nucleotide sequence, including DNA,
RNA, and complementary and reverse complementary nucleotide sequences thereto,
whether coding or noncoding and whether intact or a fragment.
1.17 "Gene Therapy" shall mean the treatment or prevention of a disease by
means of [***].
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1.18 "GenPharm Cross License" shall mean that certain Cross License entered
into by and between ABX, CGI, JTI, XT, and GenPharm International, Inc.
effective as of March 26, 1997, as the same may be amended from time to time.
1.19 "Home Territory" shall mean either the JTI Territory or the ABX
Territory, as the case may be.
1.20 "IND" shall mean an Investigational New Drug Application to the U.S.
Food and Drug Administration, or its non-U.S. equivalent.
1.21 "JTI Territory" shall mean Japan, Taiwan, and South Korea (including
the territory now comprising North Korea, if reunited with South Korea after the
date hereof).
1.22 "Licensed Technology" shall mean:
(i) the ABX-Controlled Rights;
(ii) subject matter (including patentable inventions, information,
biological materials and other intellectual property, and including all patent-
and other intellectual property rights therein) created by ABX in performing
immunization services at the request of CGI under Article 3 of this Agreement,
in each case to the extent such subject matter is reasonably necessary for CGI
to make, use, sell or otherwise exploit Covered Products in accordance with a
CGI Product Sublicense.
(iii) all other subject matter (including patentable inventions,
information, biological materials and other intellectual property, and including
all patent- and other intellectual property rights therein) owned by ABX, in
each case to the extent that ABX has the right, under the terms of the
applicable agreement(s), if any, pursuant to which ABX acquired such rights, to
license or sublicense such rights to CGI hereunder during the term of this
Agreement, and in each case only to the extent such subject matter is reasonably
necessary to make, use, sell or otherwise exploit Covered Products in accordance
with a CGI Product Sublicense; provided, however, that Antigen Specific
Technology shall be excluded from Licensed Technology.
1.23 "Mice" shall have the meaning set forth in the MRLOA.
1.24 "MRLOA" and "Master Research License and Option Agreement" shall mean
that certain Master Research License and Option Agreement entered into by and
among XT, JTI and CGI effective as of June 28, 1996, as amended from time to
time. As used herein, "MRLOA" shall also mean and include any agreement which
supersedes the MRLOA.
1.25 "Net Sublicense Revenues" shall mean (i) the amount of cash license
fees, milestone payments, Premium on Equity, and running royalties received by
ABX or its Wholly-Owned Subsidiary in respect of a Sublicense, less (ii) any
cash payments, including license fees, milestone payments or royalties, that ABX
is required to pay to third parties (other than amounts paid to XT for
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XT's own account, as described in (iii) below) as a result of such Sublicense
with respect to such Antigen by reason of the grant or exercise of such
Sublicense, and less (iii) one-half of any amounts paid by ABX to XT for XT's
own account (i.e., amounts that are paid to XT net of amounts XT is obligated to
pay to third parties other than JTI or its Affiliates) by reason of ABX's
acquiring or exercising (directly or through third parties) the Product License,
or other rights under the Licensed Technology, for such Antigen. In determining
Net Sublicense Revenue:
1.25.1 For purposes of clarification, it is understood and agreed that
Net Sublicense Revenues shall (A) not include amounts paid to ABX [***], and (B)
shall be [***] payments that ABX otherwise would be required to make.
1.25.2 For purposes of this Agreement, "Premium on Equity" shall mean
the amount by which cash amounts received by ABX or its Wholly-Owned Subsidiary
for shares in such company exceed Fair Market Value of such shares. "Fair
Market Value" or an equity security shall mean (i) if the equity security is
traded on a National Exchange, then Fair Market Value shall equal the average
closing sale price of a share of such equity security as reported on the
National Exchange for each of the thirty (30) trading days immediately
preceding the date ABX received payment for such security from the Sublicensee;
(ii) if the equity security is not traded on a National Exchange, then Fair
Market Value shall be determined on the basis of the common stock equivalents
of such equity security, and shall equal the effective gross price per share of
a common stock equivalent of ABX (subject to appropriate adjustments for stock
splits, stock dividends, recapitalizations, reorganizations and combinations) in
the last sales of equity securities by ABX to third parties other than the
Sublicensee (but including sales to such other third parties made at the same
time as the sale to the Sublicensee), in which the aggregate cash purchase
price paid by such third parties exceeded Three Million Dollars
($3,000,000) and in which at least fifty percent (50%) of the invested amount
is from investors that are not pharmaceutical or biotechnology companies (or
Affiliates thereof) and that have not previously invested in ABX and have not
entered into a collaboration or contractual arrangement with ABX. For such
purposes, "National Exchange" means the New York Stock Exchange, the American
Stock Exchange, any national market system (including without limitation the
Nasdaq National Market), or the European equivalent of such an exchange or
market system.
1.25.3 In the event that ABX or its Wholly-Owned Subsidiary grants a
Sublicense to an entity that is not a Wholly-Owned Subsidiary of ABX, and
obtains equity or other ownership interest in such entity in consideration of
such Sublicense, then any cash payment received by ABX in respect of such
equity and other ownership interest (by way of dividend, distribution of
proceeds from sale or otherwise) shall be deemed within "Net Sublicense
Revenues" hereunder. It is understood that if ABX grants a Sublicense to a
Wholly-Owned Subsidiary, any consideration received by ABX from such
Wholly-Owned Subsidiary in respect of such Sublicense shall not be
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included within the definition of Net Sublicense Revenues; however, if following
such grant of a Sublicense, the entity ceases to be a Wholly-Owned Subsidiary of
ABX, any cash payment that ABX receives thereafter (including in the transaction
in which such entity ceases to be a Wholly-Owned Affiliate) shall be deemed
within Net Sublicense Revenues to the extent the same is attributable to the
Sublicense.
1.26 "Product License" shall mean a license granted from XT to ABX pursuant
to the terms of the MRLOA (including without limitation Sections 4.2, 5.2, 5.5,
5.6, 6.2, or 7.1 thereof) permitting ABX to commercialize certain Antibody
Products. Product Licenses shall include Exclusive Worldwide Product Licenses,
Exclusive Qualified Worldwide Product Licenses, Co-Exclusive Worldwide Product
Licenses, and Exclusive Home Territory Product Licenses, as such terms are
defined in the MRLOA.
1.27 "Rest of the World" shall mean all countries of the world other than
the countries in the ABX Territory and the JTI Territory.
1.28 "Selecting" an Antigen or to "Select" an Antigen or similar phrases
shall refer to the process described in Article 4 of the MRLOA whereby JTI or
ABX obtains an option to acquire a Product License related to a particular
Antigen, and shall also include (i) the process of obtaining a Product License
pursuant to Section 7.1 of the MRLOA and (ii) any other process by which ABX may
have the right to obtain a license to make use and sell Covered Products related
to Antigens chosen by ABX.
1.29 "Selection Slot" shall mean the right of ABX to Select an Antigen
pursuant to the terms and procedures set forth in the MRLOA.
1.30 "Six-Month Period" shall mean the first six (6) months of each Year
(i.e., the six-month period ending on June 30) and the last six (6) months of
each Year (i.e., the six-month period ending on December 31).
1.31 "Sublicensee" shall mean a third party that is not an Affiliate to
whom ABX has, granted a sublicense under the Licensed Technology to both make
and sell a particular Covered Product. "Sublicensee" shall also include a third
party to whom ABX has granted the right to distribute Covered Product, provided
that such third party is responsible for marketing and promotion of such Covered
Product. It is understood that CGI is not a Sublicensee of ABX for purposes of
this Agreement. As used in this Agreement, "Sublicense" shall mean an agreement
or arrangement pursuant to which such a sublicense or distribution right has
been granted.
1.32 "Transgenic Product" shall have the meaning set forth in the GenPharm
Cross License.
1.33 "Year" shall mean each calendar year.
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1.34 Terminology Regarding Antibody Products, Covered Products, and
Licenses. For purposes of clarification, it is understood and agreed that (i)
references to Antibody Products or Covered Products "to X," "for X," "related to
X," and "with respect to X" and similar references, where "X" is an Antigen
(including without limitation any Product Antigen or Sublicense Product
Antigen), shall mean Antibody Products or Covered Products which incorporate (A)
an Antibody which binds to such Antigen or (B) Genetic Material encoding such an
Antibody wherein said Genetic Material does not encode multiple Antibodies, and
(ii) references to a license or sublicense (including without limitation any
Product License, CGI Product Sublicense, or Direct Third Party Sublicense) "to
X," "for X," "related to X," and "with respect to X" and similar references,
where "X" is an Antigen, shall mean such licenses or sublicenses conveying
rights to Antibody Products for such Antigen.
2. OPTION FOR ANTIGEN SELECTION AND CGI PRODUCT SUBLICENSES
2.1 Option to Acquire CGI Product Sublicenses.
2.1.1 Option. Pursuant to the terms and conditions set forth in this
Agreement, ABX hereby grants to CGI an option (the "Option") to enter into CGI
Product Sublicenses during the term of this Agreement, which Option may be
exercised by CGI with respect to two (2) Antigens per Year, [***], all pursuant
to the procedures set forth in this Article 2.
2.1.2 Loss of Unexercised Slot. If CGI does not exercise the Option
with respect to the full number of Antigens for which CGI has the right to
exercise the Option for any given Six-Month Period, then the unexercised Option
shall expire with respect to that number of Antigens for which it was not
exercised (i.e., so that unexercised Options may not be carried over by CGI to
any subsequent Six-Month Period). However, in the event that ABX obtains the
right to carry Selection Slots forward from the first Six- Month Period in a
Year and exercise them in the second Six-Month Period in that same Year, then
CGI shall also have the same right to the same extent to so carry forward a
proportional number of Selection Slots, in accordance with procedures to be
reasonably agreed by CGI and ABX, and in the event that ABX obtains the right to
carry Selection Slots forward from one Year to the next, ABX and CGI shall
negotiate in good faith whether, and if so the manner in which, the benefit of
such carry-forward will be made available to CGI; provided, however, that in no
event shall CGI be entitled to carry forward more Selection Slots than ABX is
permitted to carry forward and in no event shall CGI be entitled to carry any
Slot forward more than [***].
2.2 Selection of CGI Antigens. To exercise the Option with respect to
an Antigen, CGI must notify ABX in writing (each such notice an "Exercise
Notice") that CGI desires ABX to Select an Antigen for CGI for a given Six-Month
Period and identify the Antigen. A Form of Exercise Notice is attached hereto as
Exhibit E. An Exercise Notice with respect to an Antigen for a given Six-Month
Period must be given during the Six-Month Period immediately preceding the
Six-Month Period for which the Exercise Notice is given, it being understood
that if CGI has not, for each Selection Slot available to CGI for a given
Six-Month Period, provided the first Exercise Notice for
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such Selection Slot on or before the last day of the preceding Six-Month Period
(i.e., on or before December 31st or June 30th), CGI shall be deemed not to have
exercised its Option for such Selection Slots. Notwithstanding the foregoing,
the Exercise Notice with respect to the Option for the Six-Month Period ending
on December 31, 1997 may be given by CGI at any time prior to December 1, 1997,
and the Exercise Notice with respect to the Option for the Six-Month Period
beginning on January 1, 1998 may be given by CGI at any time prior to January
31, 1998. CGI may also, in cases in which Section 7.1 of the MRLOA applies
(i.e., those cases in which CGI has proprietary rights in the Antigen), request
in the Exercise Notice that ABX Select the Antigen pursuant to Section 7.1 of
the MRLOA; provided, however, that CGI shall provide to ABX for disclosure to
JTI the basis for claiming that Section 7.1 of the MRLOA applies. Following
receipt of such Exercise Notice:
(a) ABX shall promptly and in good faith determine whether, at the
time ABX received CGI's Exercise Notice, any of the following conditions (each,
an "Impediment") existed:
(i) the Antigen so identified by CGI was not then available,
under the terms of the MRLOA, for Selection by ABX because (A) ABX or JTI then
has in effect a Product License with respect to such Antigen, or has previously
Selected such Antigen and has the continuing right to acquire a Product License
with respect to such Antigen by reason of such Selection; (B) XT is obligated to
grant to a third party other than ABX or JTI exclusive rights to sell one or
more Covered Products to such Antigen (or has granted such rights to such third
parties, which rights are then in effect), or (C) XT otherwise does not have the
authority to grant ABX rights to Covered Products to such Antigen;
(ii) ABX was contractually obligated to Select such Antigen for a
third party, or has granted to a third party a contractual right (including,
without limitation, an option) to require ABX to Select such Antigen on such
third party's behalf, it being understood that the Antigen must be specifically
identified as part of such obligation or right;
(iii) the Antigen so identified by CGI is an ABX Proprietary
Antigen;
(iv) ABX is actively and in good faith engaged in negotiations
with a third party regarding the grant to such third party of a license under
the Licensed Technology to commercialize Covered Products related to such
Antigen; or
(v) ABX has performed research on its own behalf regarding such
Antigen and has reached a point equivalent to completion of Item No. 11 of the
attached Exhibit A [***] of Mice or Future Generation Mice with such Antigen.
ABX shall, within thirty (30) days after receiving the Exercise Notice, notify
CGI in writing of any such Impediment and, unless contractually prohibited from
doing so, provide reasonable documentation of the existence of such Impediment;
provided, that at ABX's election ABX may provide such documentation under
circumstances reasonably calculated to ensure the confidentiality
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thereof, which circumstances may include disclosure of such documentation to a
third party, chosen by CGI and reasonably acceptable to ABX, under terms of a
confidentiality agreement. If such an Impediment exists and ABX so notifies CGI
during such period, then ABX shall not be obligated to Select such Antigen or
grant to CGI a CGI Product Sublicense with respect to such Antigen; provided,
however, that nothing herein shall preclude CGI from later attempting again to
exercise the Option with respect to such Antigen in accordance with this Article
2. In the event that CGI has exercised the Option with respect to an Antigen,
but has been unable to have ABX Select such Antigen by reason of an Impediment
(as set forth in this Section 2.2), then CGI may again exercise such Option for
a different Antigen, as provided in Section 2.2(b) below.
(b) Subject to paragraph 2.2(a) above, ABX shall Select such Antigen
at the first [***], or at the next other opportunity at which ABX may make such
selection, whichever occurs first. If requested to do so by CGI in an
appropriate case, ABX shall Select such Antigen pursuant to Section 7.1 of the
MRLOA. ABX agrees to keep available for Selection at CGI's request in accordance
with this Section 2.2 during each Six-Month Period the number of Selection Slots
with respect to which CGI has the right to exercise the Option for such
Six-Month Period, it being understood, however, that if CGI does not exercise
the Option during the time permitted under this Section 2.2, ABX shall have the
right to use such Selection Slot for its own account or for the benefit of a
third party, subject to Section 5.1 below. It is understood that if CGI
exercises its Option with a timely Exercise Notice but an Impediment exists with
respect to the Antigen requested by CGI, ABX shall, unless the parties otherwise
mutually agree, be required to keep the Selection Slot available for CGI to
exercise the Option with respect to an alternative Antigen until the midpoint of
the Six-Month Period during which the Selection Slot was to be exercised on
behalf of CGI (i.e., March 31st or Sept 30th of such Six-Month Period, as the
case may be). CGI may exercise the Option with respect to such alternative
Antigen by sending a new Exercise Notice naming such alternative Antigen;
provided, however, that if ABX receives such an Exercise Notice naming an
alternative Antigen less than thirty (30) days before the first quarterly
meeting within the Six-Month Period, then ABX may, in its discretion, [***]
within the Six-Month Period or the next available opportunity, whichever is
sooner. If CGI has not provided an Exercise Notice naming an alternative Antigen
that is free of Impediments prior to the midpoint of the Six-Month Period, then
(i) ABX shall not be obligated to Select an Antigen for CGI using that Selection
Slot during such Six-Month Period but (ii) ABX shall not, without CGI's written
consent, be entitled to Select another Antigen on behalf of itself or a third
party using such Selection Slot.
(c) CGI shall be responsible for the payment of all amounts that ABX
may owe to XT under the MRLOA by reason of ABX's Selection of an Antigen on
behalf of CGI. Upon ABX's Selection of an Antigen identified by CGI under this
Section 2.2, such Antigen shall become a "CGI Antigen." ABX shall promptly
notify CGI of its Selection of an Antigen requested by CGI and shall inform CGI
of the deadline for ABX to exercise its option under the MRLOA to obtain a
Product License resulting from Selection of the Antigen.
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(d) Coordination with Selection Under MRLOA.
(i) With the Exercise Notice for each CGI Antigen, CGI shall
propose a definition of such CGI Antigen and shall provide a summary of the
scientific background for Selection of such CGI Antigen at least sufficient for
ABX to comply with its minimum disclosure obligations under Section 4.2(i)(a) of
the MRLOA.
(ii) In the event a dispute arises between CGI and ABX as to
whether the definition proposed by CGI indicates a substance that is
sufficiently characterized to be within the definition of Antigen set forth in
the MRLOA, the issue shall be resolved by binding arbitration by one arbitrator
reasonably acceptable to the parties who is experienced in the pharmaceutical
industry and in biological research and development. If the parties are unable
to agree on an arbitrator, the arbitrator shall be an independent expert as
described in the preceding sentence selected by the chief executive of the San
Francisco office of the American Arbitration Association. The arbitrator shall
in a written opinion state whether the selected substance is an Antigen. The
arbitration shall be conducted in English and shall be held in San Francisco,
California. Each party shall pay its own costs in connection with such
arbitration and share equally the other expenses associated with the
arbitration. Any arbitration subject to this Section 2.2(d) shall be completed
within sixty (60) days from the filing of notice of a request for such
arbitration.
(iii) ABX agrees to use reasonable efforts to obtain JTI's
agreement to the CGI Antigen definition proposed by CGI to the extent that such
proposed definition is consistent with the definition of "Antigen" under the
MRLOA, and CGI agrees to provide reasonable cooperation to ABX in support of
such efforts. Prior to Selection of the Antigen by ABX, CGI and ABX agree, at
the request of either party, to discuss in good faith the definition of the CGI
Antigen proposed by CGI and any proposed changes to such definition.
Notwithstanding any other provision of this Agreement, it is understood that the
rights granted to CGI under this Agreement (and any CGI Product Sublicense
entered into under this Agreement) shall be subject to the definition for each
CGI Antigen that is established in accordance with the terms of the MRLOA.
2.3 Buy-In Rights.
2.3.1 Notice. ABX may, at its sole election, from time to time
describe to CGI one or more Buy-In Rights that ABX may be entitled to exercise
in respect of Antigens Selected by JTI, as well as the deadline for exercising
such Buy-In Rights, and offer to exercise such Buy-In Rights as to an Antigen at
the request of CGI in lieu of CGI's exercising its Option [***] for that
Six-Month Period or, if the parties mutually agree, for any following Six-Month
Period. It is understood that the parties may need to reach additional
agreements regarding disclosure and licensing of Antigen Inventions regarding
such Antigen before agreeing to have ABX exercise its Buy-In Right for such
Antigen as described in this Section 2.3.
2.3.2 Request by CGI. If, in response to a proposal under Section
2.3.1 and after the parties have negotiated the terms of such a proposal
(including without limitation the rights to disclose or license Antigen
Inventions pursuant to the terms of the MRLOA), CGI requests that ABX
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exercise its Buy-In Right related to an Antigen, ABX shall, to the extent it has
the right to do so, exercise its Buy-In Right related to such Antigen promptly
following the request by CGI.
2.3.3 Payment; Exercise. CGI shall be responsible for the payment of
all amounts that ABX may owe to XT under the MRLOA by reason of ABX's exercising
a Buy-In Right related to an Antigen on behalf of CGI under this Section 2.3.
Upon ABX's exercise under the MRLOA of a Buy-In Right related to an Antigen as
requested by CGI under this Section 2.3, the Antigen to which the Buy-In Right
relates shall be a "CGI Antigen." ABX shall promptly notify CGI of its exercise
of a Buy-In Right requested by CGI and shall inform CGI of the deadline for ABX
to exercise its option under the MRLOA to obtain a Product License resulting
from the exercise of the Buy-In Right. In the event that CGI so requests ABX to
exercise its Buy-In Right with respect to an Antigen, and ABX exercises such
Buy-In Right under the MRLOA with respect to such Antigen pursuant to such
Buy-In Right, then CGI shall be deemed to have exercised its Option [***] in the
Six-Month Period in which CGI requested ABX to exercise such Buy-In Right;
provided, however, that if ABX does not exercise its Buy-In Right, then CGI
shall not be deemed to have exercised its Option [***] by reason of requesting
ABX to exercise such Buy-In Right.
2.4 Obtaining Product Licenses from XT to ABX for CGI Antigens.
2.4.1 Notice. Following Selection of a CGI Antigen, or exercise of a
Buy-In Right for a CGI Antigen, (i) ABX shall (subject to Section 4.1.2 below)
exercise its rights under the MRLOA and obtain a Product License for such CGI
Antigen from XT, (ii) CGI shall be responsible for payment of any amounts due to
XT pursuant to the terms of the MRLOA by reason of such exercise, and (iii) ABX
and CGI shall enter into a CGI Product Sublicense pursuant to the terms of
Section 2.6 of this Agreement with respect to such CGI Antigen. Notwithstanding
the foregoing, in the event that CGI provides written notice to ABX, no later
than thirty (30) days prior to the deadline for ABX to enter into a Product
License for a CGI Antigen, instructing ABX not to exercise its rights to obtain
a Product License for that CGI Antigen on behalf of CGI (each such notice an
"Abandonment Notice"), then (i) CGI shall not be obligated to pay amounts due to
XT pursuant to the terms of the MRLOA for such Product License, (ii) ABX shall
not be obligated to obtain such Product License, and (iii) ABX shall not be
obligated to enter a CGI Product Sublicense for such Antigen. If CGI sends such
an Abandonment Notice with respect to an Antigen, then that Antigen shall cease
to be a CGI Antigen for purposes of this Agreement; however, it is understood
that CGI shall nonetheless continue to be considered to have exercised the
Option for purposes of determining the number of Antigens for which CGI is
entitled to exercise the Option under Section 2.1 above.
2.4.2 Use by ABX. It is understood that if ABX has Selected a CGI
Antigen or exercised a Buy-In Right for a CGI Antigen and CGI thereafter gives
ABX an Abandonment Notice regarding that CGI Antigen as provided in Section
2.4.1, ABX shall be entitled, in its sole discretion, to exercise ABX's option
and enter into the Product License related to that Antigen on its own behalf and
shall not be obligated to enter into the corresponding CGI Product Sublicense,
and shall not be obligated to make the payments to CGI provided under Section
5.1 of this Agreement (although ABX will remain obligated to make the payments,
if any, required under Section 6.3); provided,
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however, that in such event CGI shall not be responsible to pay any further
amounts due from ABX to XT with respect to such Product License.
2.5 Research License. Following Selection of each CGI Antigen (or exercise
of a Buy-In Right for each CGI Antigen) and subject to the terms and conditions
of this Agreement, ABX agrees to grant, and hereby grants, to CGI a nonexclusive
sublicense under the Licensed Technology to develop, make, have made, use,
import or export or otherwise transfer physical possession of (but not to sell,
lease, offer to sell or lease, or otherwise transfer title to) Covered Products
related to such CGI Antigen and cells that express or secrete Antibodies to such
CGI Antigen, in each case solely for purposes relating to or in connection with
research or development (i) of Covered Products for use in the field of Gene
Therapy or (ii) involving Genetic Material when used with viral or nonviral gene
transfer systems. CGI shall have the right to sublicense the rights granted
under this Section 2.5 upon the approval of ABX, which approval shall not be
unreasonably withheld. In the event that ABX refuses to approve such a
sublicense, ABX shall, to the extent that ABX has the right to do so, grant at
CGI's request a nonexclusive sublicense of such rights directly to a
non-Affiliate third party designated by CGI on terms and conditions
substantially identical to the applicable terms and conditions of this
Agreement. The sublicense granted by ABX under this Section 2.5 with respect to
a CGI Antigen (and the further sublicenses, if any, granted by CGI under this
Section 2.5 with respect to such CGI Antigen) shall terminate at such time as
(A) CGI sends ABX an Abandonment Notice pursuant to Section 2.4.1 above
regarding such CGI Antigen or (B) CGI enters into a CGI Product Sublicense
related to such CGI Antigen; provided, however, that termination of a sublicense
under this Section 2.5 with respect to a CGI Antigen pursuant to (B) above shall
not affect the duration or survival of a grant of similar rights or sublicense
under the CGI Product Sublicense with respect to such CGI Antigen, which rights
or sublicense shall terminate or expire only in accordance with the terms of
such CGI Product Sublicense. In the event that ABX enters into a Product
Sublicense with respect to a CGI Antigen and CGI has not within six (6) months
thereafter entered into a CGI Product Sublicense with respect to such CGI
Antigen, the sublicense granted under this Section 2.5 with respect to such CGI
Antigen shall terminate. It is understood and agreed that (x) as to
ABX-Controlled Rights, the grant of rights under this Section 2.5 shall be
subject to and limited in all respects by the terms of the applicable ABX
In-License(s) pursuant to which such ABX-Controlled Rights were granted to ABX
and (y) the rights and sublicenses granted to CGI under this Section 2.5 or any
other provision of this Agreement shall be subject in all respects to the
GenPharm Cross License.
2.6 Terms of CGI Product Sublicense. At such time as ABX enters into a
Product License with XT with respect to a CGI Antigen pursuant to Section 2.4.1,
CGI and ABX shall promptly execute a CGI Product Sublicense granting CGI rights
corresponding to such CGI Antigen in the Gene Therapy field, all as set forth in
the form of CGI Product Sublicense attached as Exhibit B hereto. During such
time as CGI is an Affiliate of ABX (as the term "Affiliate" is defined in the
GenPharm Cross License), CGI shall have a direct sublicense from XT under the
GenPharm Cross License for Covered Products related to that CGI Antigen, as set
forth in the Direct Sublicense of GenPharm Rights entered into by and between XT
and CGI effective as of October ___, 1997 (the "Direct Sublicense of GenPharm
Rights"). ABX shall arrange for Product Licenses entered into by ABX for CGI
Antigens during such time as CGI is an Affiliate of ABX (as the term "Affiliate
is
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defined in the GenPharm Cross License) to contain provisions specifying that
rights under the GenPharm Cross License conveyed to ABX under such Product
Licenses are subordinate to the rights conveyed to CGI under the Direct
Sublicense of GenPharm Rights.
2.6.1 Coordination With Direct Sublicense of GenPharm Rights.
(a) To the extent (and only to the extent) that the grant of
sublicenses and rights to CGI, or third parties, under the Direct Sublicense of
GenPharm Rights precludes, under the terms of the GenPharm Cross License, the
grant of any sublicense or rights under the GenPharm Cross License related to
the same Antigen to ABX (whether by Product License or otherwise), ABX agrees
that rights granted to ABX by XT, including the sublicense of rights under the
GenPharm Cross License under the Product License related to that Antigen, shall
be subordinate to the sublicenses and rights granted to CGI under the Direct
Sublicense of GenPharm Rights.
(b) For purposes of further clarification, it is understood that,
to the extent that one or more sublicenses granted to CGI, or third parties,
under the Direct Sublicense of GenPharm Rights terminate or expire for any
reason (including without limitation any termination or expiration pursuant to
Article 9 of the Direct Sublicense of GenPharm Rights), the rights granted to
ABX under the Product Licenses related to the same CGI Product Antigens as the
terminated or expired sublicenses shall no longer be subject to the rights
granted to CGI under the Direct Sublicense of GenPharm Rights; and, accordingly,
in such event the rights granted to CGI or third parties under the Direct
Sublicense of GenPharm Rights may become part of the rights granted under the
Product License from XT to ABX related to that Antigen (and from ABX to CGI in
any corresponding CGI Product Sublicense), in each case to the extent so
provided in the applicable Product License (or CGI Product Sublicense,
respectively).
2.6.2 Territory and Exclusivity. The Territory and exclusivity
provided in a given CGI Product Sublicense shall be the same as the Territory
and exclusivity granted to ABX under the Product License from XT to ABX related
to the same Antigen. Accordingly, for example, (i) if ABX obtains a Co-
Exclusive Worldwide Product License related to the CGI Antigen, the terms of the
CGI Product Sublicense shall provide for a Territory which is the Home Territory
of ABX and the Rest of the World and will provide that the rights granted
therein are exclusive in the Home Territory of ABX and co-exclusive with JTI or
its assignee or sublicensee in the Rest of the World, (ii) if ABX obtains an
Exclusive Home Territory Product License related to the CGI Antigen, the terms
of the CGI Product Sublicense shall provide for a Territory which is the Home
Territory of ABX and will provide that the rights granted are exclusive in that
Home Territory, (iii) if ABX obtains an Exclusive Qualified Worldwide Product
License related to the CGI Antigen, the terms of the CGI Product Sublicense will
provide for a Territory which is the Home Territory of ABX and the Rest of the
World, and will provide that the rights granted are exclusive in that territory,
and (iv) if ABX obtains an Exclusive Worldwide Product License related to the
CGI Antigen, the terms of the CGI Product Sublicense will provide for a
Territory which is worldwide and will provide that the rights granted are
exclusive in that territory.
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2.6.3 Financial Terms. It is understood that the financial terms of
each CGI Product Sublicense, including without limitation license fees,
milestone payments, and royalty payments, shall be no less favorable to CGI than
the financial terms of the Product License between ABX and XT related to the
same Antigen. This Section 2.6.3 shall not be deemed to limit ABX's obligations
under Section 11.1(v) below.
2.6.4 Rights to Antigens. Notwithstanding any other provision of this
Agreement, it is understood and agreed that neither this Agreement nor the CGI
Product Sublicenses convey to CGI any rights ABX may have (whether by patentable
invention, license, or otherwise) in or to Antigen Specific Technology, nor does
the CGI Product Sublicense or this Agreement convey to ABX any rights that CGI
may have (whether by patentable invention, license, or otherwise) in or to any
technology of CGI whatsoever (other than the right to use Antigen provided by
CGI for the purpose of conducting the immunization services set forth in Article
3 of this Agreement), unless the parties expressly agree otherwise in writing.
2.6.5 Residual Rights. For purposes of clarification, it is understood
that the license granted to CGI under a CGI Product Sublicense shall be for
Covered Products in the Gene Therapy field, and that ABX shall retain all rights
under the corresponding Product Licenses outside of the Gene Therapy field,
subject to Section 5.2 below.
3. IMMUNIZATION SERVICES
3.1 Services. Following CGI's exercise of its Option with respect to an
Antigen pursuant to Section 2.2 or exercise of a Buy-In Right to a CGI Antigen
pursuant to Section 2.3, and upon request from CGI, ABX agrees to provide to CGI
reasonable immunization services as described in Exhibit A hereto with respect
to such CGI Antigen, [***]. Unless the parties agree otherwise in writing, ABX
shall perform such immunization services with a number of Mice (or Future
Generation Mice) as specified in Exhibit A and shall use a level of effort
calculated to complete the tasks set forth in Exhibit A within six (6) months
after the time CGI requests such services and provides to ABX both reasonably
sufficient quantities of the Antigen and the primary and secondary screening
assays as set forth in Exhibit A unless, with diligent efforts, ABX is unable to
complete such services in such time, in which case ABX shall complete such
services as soon as practicable; provided, that in no event shall ABX use
efforts less than the efforts ABX uses for similar activities with respect to
its own Antibody Products. CGI may direct ABX to use one or more types of Mice
or Future Generation Mice from such colonies as ABX makes available for such use
by third parties, provided that ABX shall not be obligated to use a total number
of Mice and Future Generation Mice exceeding the number set forth in Exhibit A.
It is understood that ABX shall have no obligation to provide immunization
services related to an Antigen if an Impediment exists with respect to such
Antigen (as described in Section 2.2 above) or ABX has not exercised its Buy-In
Right with respect to such Antigen.
3.2 Improvements; Disclosure and Cooperation. On CGI's request, ABX shall
make reasonably available for use in connection with performance of immunization
services pursuant to
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this Article 3, such improvements and new technologies (including without
limitation immunization methodologies, hybridoma technologies, and the use of
different strains of, or improvements in, Mice or Future Generation Mice for
immunization) as may become available to ABX for use in performing such
immunization services and are generally offered to be made similarly available
by ABX to third parties. To the extent that ABX may make such improvements or
new technologies available for use on behalf of CGI without incurring
substantial incremental expenses, over the cost of performing immunization
services using technologies available as of the Effective Date, ABX shall make
such improvements or new technologies available to CGI at no cost to CGI, and if
there is such substantial incremental expense, ABX shall notify CGI in advance
and shall use such improvements or new technologies for immunization services
under this Article 3 if CGI agrees in advance to pay such additional expenses.
ABX agrees to keep CGI reasonably informed of any such improvements or new
technologies and agrees to provide, on CGI's request, reasonable cooperation and
assistance in helping CGI to understand the nature of the improvements or new
technology and determine whether CGI should choose to request the use of such
improvements or new technologies in performance of immunization services under
this Agreement.
3.3 Ownership of Materials and Intellectual Property. Except as otherwise
provided in Section 8.1 of this Agreement, ABX shall retain all right, title and
interest in any biological materials, information, technical data, ideas,
discoveries, works of authorship, patentable and unpatentable inventions,
know-how, engineering drawings, and equipment made by ABX (and its employees,
agents, or representatives) in the course of performing immunization services
under this Agreement.
3.4 Supply of Hybridomas; Terms of Material Transfer. ABX agrees to use
reasonable efforts to provide quantities of the hybridoma clones supplied in
accordance with Exhibit A to CGI as reasonably requested by CGI. All hybridomas
derived from Mice or Future Generation Mice provided from ABX to CGI shall
remain the property of ABX, and the transfer of physical possession of any
Transgenic Products to CGI shall not be construed as a sale, lease, offer to
sell or lease, or other transfer of title. All Antibody Products transferred
from ABX to CGI shall remain the property of ABX, and the transfer of physical
possession to CGI, and/or possession or use by CGI, of such Antibody Products
shall not be (nor be construed as) a sale, lease, offer to sell or lease, or
other transfer of title to such Antibody Products. It is understood and agreed
that transfer of hybridomas to CGI pursuant to Article 3 of this Agreement shall
not convey to CGI any implied rights or sublicenses, and that CGI shall only be
authorized regarding the manufacture, use, and other exploitation of such
hybridomas pursuant to (and to the extent of) rights and sublicenses conveyed to
CGI under a CGI Product Sublicense (and any corresponding sublicense directly to
CGI from XT under the GenPharm Cross License, it being understood that all
rights and sublicenses under the GenPharm Cross License are subject to the
limitations set forth therein). CGI shall only use such hybridomas in compliance
with all applicable national, state, and local laws and regulations, including
all applicable National Institutes of Health guidelines and agrees that such
hybridomas will not be used in humans, except in accordance with all applicable
regulations and laws. CGI acknowledges that such hybridomas are experimental in
nature and may have unknown characteristics and therefore agrees to use prudence
and reasonable care in the use, handling, storage, transportation, disposition
and containment of such hybridomas and all derivatives thereof.
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3.5 Supply of CGI Antigen; Terms of Material Transfer. CGI Antigen
materials, and primary and secondary screening assay materials, provided by CGI
to ABX for performance of the immunization services shall remain the property of
CGI, and the transfer of physical possession of such materials to ABX shall not
be construed as a sale, lease, offer to sell or lease, or other transfer of
title. It is understood and agreed that transfer of such materials to ABX
pursuant to Article 3 of this Agreement shall not convey any implied right,
license or sublicense to ABX regarding such materials except to the extent (and
only to the extent) necessary to perform the immunization services set forth in
this Article 3. ABX shall only use such materials for performing immunization
services pursuant to Article 3 as set forth in Exhibit A. ABX shall only use
such CGI Antigen materials in compliance with all applicable national, state,
and local laws and regulations, including all applicable National Institutes of
Health guidelines and agrees that such materials will not be used in humans,
except in accordance with all applicable regulations and laws. ABX acknowledges
that such CGI Antigen materials are experimental in nature and may have unknown
characteristics and therefore agrees to use prudence and reasonable care in the
use, handling, storage, transportation, disposition and containment of such
materials and all derivatives thereof. ABX shall not disclose to any third
party, or license to any third party, any Antigen Inventions for CGI Proprietary
Antigens made by ABX using materials provided by CGI.
4. LIMITATIONS ON LICENSES AND SELECTION; RIGHT TO EXCLUSIVE
WORLDWIDE LICENSE.
4.1 Limitation on Licenses and Selection of Antigens.
4.1.1 "[***] Product License." For purposes of this Section 4.1, a
Product License for a CGI Antigen shall be a "[***] Product License" from the
time that ABX and XT enter into such Product License for such CGI Antigen until
the earlier of (i) the time a Covered Product [***]or (ii) the time the CGI
Product Sublicense for such CGI Antigen and all sublicenses thereunder are
terminated or expire (or is disclaimed by CGI in writing prior to execution of
the CGI Product Sublicense).
4.1.2 Limitation on CGI Pre-IND Product Licenses. Notwithstanding any
other provision of this Agreement, ABX shall not be obligated to enter into a
Product License for a CGI Antigen if entering into such Product License would
bring the total number of [***].
4.2 Right to Exclusive Worldwide Product License. In the event that ABX has
obtained a Product License for Covered Products related to a CGI Antigen which
is a Co-Exclusive Worldwide Product License, Exclusive Qualified Worldwide
Product License, Exclusive Home Territory Product License, or other license
conveying lesser rights than would be conveyed under an Exclusive Worldwide
Product License, and thereafter acquires the right under the MRLOA to obtain
additional rights relating to such Covered Products (including without
limitation an Exclusive Worldwide Product License for such Covered Products),
ABX shall notify CGI and provide a description to CGI of such additional rights.
If CGI requests ABX to exercise its right to obtain such broader rights
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prior to the deadline, if any, for ABX to exercise such right, ABX shall
exercise its right under the MRLOA to obtain such broader rights and revise the
corresponding CGI Product Sublicense to match the Territory and exclusivity
available to ABX after obtaining such broader rights; provided, however, that
CGI shall be responsible for paying any additional license fees paid by ABX to
XT therefor and CGI shall not have the right to obtain rights broader than those
contained in the form of CGI Product Sublicense attached hereto as Exhibit B.
ABX shall not be obligated to give notice or exercise its right to obtain
additional rights as provided in this Section 4.2, unless a CGI Product
Sublicense related to such CGI Antigen is then in effect. ABX shall have the
right, at its own expense, to exercise its right to obtain such broader rights
at any time prior to request by CGI under this Section 4.2.
5. EXPLOITATION OF RESIDUAL RIGHTS BY ABX
5.1 Use of the CGI Selection Slot by ABX. If for any given Six-Month Period
CGI does not exercise its Option (and is not deemed to have exercised its Option
under Section 2.3 above) with respect to the full number of Antigens for which
CGI has the right to do so under Section 2.1, then that Selection Slot will be
available for ABX to select an Antigen (for its own account or for the benefit
of a third party). In the event that ABX Selects an Antigen using such Selection
Slot, ABX shall promptly notify CGI which Antigen was Selected using the CGI
Selection Slot. If ABX or its Wholly-Owned Subsidiary thereafter grants to a
third party a Sublicense under ABX's Product License related to such Antigen,
then ABX shall pay to CGI [***] of Net Sublicense Revenues from such Sublicense.
5.2 Use of Residual Rights Related to CGI Antigen. In the event that ABX
grants a Sublicense to a third party with respect to non-Gene Therapy
applications of Covered Products related to a CGI Antigen, then ABX shall pay to
CGI [***] of Net Sublicense Revenues from such Sublicense. If such residual
rights exercised by ABX were obtained as a result of CGI requesting ABX to
exercise a Buy-In Right as set forth under Section 2.3, then ABX shall also
reimburse CGI for [***] of any option fees and up front license fees paid by CGI
pursuant to Section 2.3.3.
5.3 No Implied Obligation. Nothing in the Agreement shall obligate ABX to
use the Selection Slot reserved for CGI in the manner set forth in Section 5.1
or to exploit the residual rights for non-Gene Therapy applications of Covered
Products related to a CGI Antigen as set forth in Section 5.2, nor shall ABX
have any implied obligation or duty to Sublicense any such rights to a third
party.
6. ADDITIONAL OBLIGATIONS REGARDING NON-CGI ANTIGENS
6.1 Sale of Covered Products for Gene Therapy. ABX shall not itself market
or sell any Covered Product solely or primarily for use in Gene Therapy.
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6.2 Gene Therapy Sublicenses. ABX shall not enter into any Sublicense
agreement with a third party granting rights to make, have made, use, sell or
offer to sell Covered Products (i) solely for use in the Gene Therapy or (ii)
where ABX knows, at the time the Sublicense is granted, that the third party's
objective is primarily to sell the Covered Products for use in Gene Therapy.
Notwithstanding the foregoing, the parties acknowledge and agree that if a
Sublicensee's stated intention (in writing) at any time prior to obtaining the
Sublicense is to commercialize a Covered Product pursuant to such Sublicense for
an application other than Gene Therapy before commercializing a Covered Product
pursuant to such Sublicense for a Gene Therapy Application, such Sublicensee's
primary objective shall be deemed not to be to sell Covered Products for use in
Gene Therapy, even if such Sublicensee also intends to develop and sell Covered
Products for use in Gene Therapy, and even if such Gene Therapy application is
ultimately commercialized before Covered Products for non-Gene Therapy
applications are commercialized.
6.3 Permitted Sublicenses Including Gene Therapy.
(a) Subject to Section 6.2, ABX may enter into a Sublicense agreement
with a third party granting rights to such third party with respect to Covered
Products for use in Gene Therapy; provided, however, that ABX shall pay to CGI
(i) [***] of the net amount of all cash milestone payments and Premium on Equity
(as defined in Section 1.25.2) received by ABX from such third party under such
Sublicense which are triggered by Covered Products in the Gene Therapy field and
(ii) [***] of the net amount of running royalties received by ABX from such
third party for such Covered Products in the Gene Therapy field. For purposes of
determining the "net" amount of milestone payments, Premium on Equity, and
running royalties described in the preceding sentence, (A) any amounts that ABX
is required to pay to third parties (other than amounts paid to XT for XT's own
account, as described in (B) below) as a result of the grant or exercise of such
Sublicense including without limitation any royalties owed by ABX to such third
parties in respect of Sublicensee Net Sales of such Covered Products, and (B)
[***] of any amounts paid by ABX to XT for XT's own account (i.e., amounts that
are paid to XT net of amounts XT is obligated to pay to third parties other than
JTI or its Affiliates) by reason of ABX's acquiring or exercising (directly or
through third parties) the Product license, or other rights under the Licensed
Technology for such Antigen, shall in each case be deducted from the amount of
milestone payments, Premium Equity, and royalties received by ABX or its
Wholly-Owned Subsidiary in respect of such Sublicense, before calculating CGI's
share. For purposes of clarification, it is understood and agreed that such
"net" amounts shall (A) not include amounts paid to ABX for [***], and (B) shall
be net of any [***].
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(b) In the event that ABX performed research regarding an Antigen and
reached a point equivalent to completion of Item 11 on Exhibit A hereto with
respect to such Antigen prior to (i) granting to a third party a Sublicense with
respect to Covered Products related to that Antigen, or an option to obtain such
a Sublicense, or (ii) obtaining a contractual commitment from a third party to
reimburse the expenses of such research and development work in whole or part,
then the payments set forth in Section 6.3(a) shall not apply, and ABX shall not
be required to account to CGI for milestone and royalty payments related to such
Covered Products; provided, however, that the payments in Section 6.3(a) shall
apply in the case of Covered Products related to the [***].
(c) It is understood and agreed by the parties that the
obligations in this Section 6.3 shall not apply with respect to Covered Products
for Antigens (i) that were Selected by ABX prior to the Effective Date, (ii) for
which ABX exercised a Buy-In Right prior to the Effective Date, or (iii) with
respect to which ABX entered into a license to make, use and sell Covered
Product prior to the Effective Date; provided, however, that the provisions of
this Section 6.3 shall apply to Covered Products for the [***].
6.4 [***]. ABX agrees that it will [***], and ABX agrees to [***].
6.5 No Implied Obligations. Nothing in this Agreement shall be deemed to
obligate CGI to (i) request ABX to Select CGI Antigens, (ii) request ABX to
exercise Buy-In Rights for CGI Antigens, or (iii) request ABX to obtain a
Product License for Covered Products related to a CGI Antigen; provided,
however, that CGI's diligence obligations under each CGI Product Sublicense
shall be as set forth in that CGI Product Sublicense. Subject to the terms of
any CGI Product Sublicense entered into between CGI and ABX, nothing in this
Agreement shall prevent CGI from commercializing products similar to or
competitive with Covered Products, in addition to or in lieu of such Covered
Products. Nor shall anything in this Agreement be deemed to obligate ABX to act
in a manner to generate or maximize the amounts payable to CGI under Sections
5.1, 5.2, or 6.3 of this Agreement.
7. PAYMENTS; ACCOUNTING AND REPORTS
7.1 Amounts Due to ABX From CGI. ABX shall invoice CGI for all amounts due
to ABX from CGI hereunder (including without limitation any amounts that ABX
owes XT for Selection of a CGI Antigen or for execution of a Product License
with respect to a CGI Antigen), and CGI shall pay such amounts within thirty
(30) days of receiving such invoice. Payments due to ABX from CGI under CGI
Product Sublicenses shall be made as set forth therein.
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7.2 Revenue Sharing Reports and Payments. After the first commercial sale
of Product on which amounts are required to be paid by ABX to CGI under Sections
5.1, 5.2, or 6.3 above, ABX agrees to make quarterly written reports to CGI
within sixty (60) days after the end of each calendar quarter, stating in each
such report the source, basis, and payments, and aggregate amounts of, amounts
received by ABX from Sublicensees during the calendar quarter upon which
payments are due to CGI under Sections 5.1, 5.2 and 6.3 above. Concurrently with
the making of such reports, ABX shall pay to CGI all amounts payable pursuant to
Sections 5.1, 5.2, and 6.3 above. All payments to CGI hereunder shall be made in
U.S. Dollars to a bank account designated by CGI.
7.3 Records; Inspection. ABX shall keep (and cause its Wholly-Owned
Subsidiaries to keep) complete, true and accurate books of account and records
for the purpose of determining the amounts payable to CGI under Sections 5.1,
5.2, and 6.3 this Agreement. Such books and records shall be kept at the
principal place of business of ABX or its Wholly-Owned Subsidiaries, as the case
may be, for at least three years following the end of the calendar quarter to
which they pertain. Such records of ABX or its WhollyOwned Subsidiaries will be
open for inspection during such three-year period by a representative of CGI for
the purpose of verifying the statements. ABX shall require each of its
Sublicensees to maintain similar books and records and to open such records for
inspection during the same three-year period by a representative of ABX
reasonably satisfactory to CGI on behalf of, and as required by, CGI for the
purpose of verifying the revenue sharing statements. All such inspections may be
made no more than once each calendar year, at reasonable times mutually agreed
by CGI and ABX. The representative of CGI will be obliged to execute a
reasonable confidentiality agreement prior to commencing any such inspection.
Inspections conducted under this Section 7.3 shall be at the expense of CGI,
unless a variation or error producing an increase exceeding ten percent of the
amount stated for the period covered by the inspection is established in the
course of any such inspection, whereupon all costs relating thereto will be paid
by ABX. Upon the expiration of three years following the end of any fiscal year,
the calculation of revenues to be shared with respect to such year shall be
binding and conclusive, and ABX shall be released from any liability or
accountability with respect to royalties for such year.
7.4 Currency Conversion. If any currency conversion shall be required in
connection with the calculation of royalties or other payments hereunder, such
conversion shall be made using the selling exchange rate for conversion of the
foreign currency into U.S. Dollars, quoted for current transactions reported in
The Wall Street Journal for the last business day of the calendar quarter to
which such payment pertains.
7.5 Late Payments. Any payments due under this Agreement from either party
that are not paid on the date such payments are due under this Agreement shall
bear interest to the extent permitted by applicable law at the prime rate as
reported by the Bank of America in San Francisco, California on the date such
payment is due, plus an additional two percent, calculated on the number of days
such payment is delinquent. This Section 7.5 shall in no way limit any other
remedies available to any party.
7.6 Withholding Taxes. All payments required to be made pursuant to this
Agreement shall be without deduction or withholding for or on account of any
taxes (other than taxes
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imposed on or measured by net income) or similar governmental charge imposed by
a jurisdiction, such taxes referred to herein as "Withholding Taxes." Such
Withholding Taxes shall be the sole responsibility of the withholding party. The
withholding party shall provide a certificate evidencing payment of any
Withholding Taxes hereunder.
8. INTELLECTUAL PROPERTY
8.1 Ownership of Inventions. Title to all inventions and other intellectual
property made solely by an ABX employee in connection with this Agreement shall
be owned by ABX. Title to all inventions and other intellectual property made
solely by an CGI employee in connection with this Agreement shall be owned by
CGI. Title to all inventions and other intellectual property made jointly by
employees of ABX and CGI in connection with this Agreement shall be jointly
owned by CGI and ABX. Notwithstanding the foregoing, as to CGI Proprietary
Antigens, CGI shall own all intellectual property rights, and other proprietary
rights, in and to inventions comprising: (i) compositions of such Antigens and
Genetic Materials encoding such Antigens; (ii) antibodies that bind to such
Antigens, Genetic Materials encoding such antibodies, and cells that express or
secrete such antibodies (it being understood that ownership of such intellectual
property by CGI shall not be, nor be construed as, a sale, lease, offer to sell
or lease, or other transfer of title of any physical materials, including
without limitation materials comprising Transgenic Products); and (iii) uses of
antibodies to such Antigens; in each case which inventions are made in the
course of performing services under Article 3 of this Agreement. Except as
expressly provided in this Agreement, it is understood that neither party shall
have any obligation to account to the other for profits, or to obtain any
approval of the other party to license or exploit jointly owned intellectual
property. In addition, except as may be expressly provided under a CGI Product
Sublicense actually entered into between the parties, this Agreement shall not
be deemed to grant to either CGI or ABX any right to prosecute, enforce or
defend any patent or other intellectual property right owned or controlled by
the other party.
8.2 Disclosure of Inventions. Each party shall promptly disclose to the
other any patentable invention related to a CGI Antigen or an Antibody Product
for such CGI Antigen, using the inventions disclosure form attached as Exhibit C
hereto. All inventions disclosed under this Section 8.2 shall be treated as
"Confidential Information" of the disclosing party under Article 9 of this
Agreement. Nothing herein shall affect a party's ownership of any invention
disclosed to the other party.
8.2.1 Disclosure and Licensing to JTI. It is understood and agreed
that if an Antigen does not qualify for Selection by ABX pursuant to Section 7.1
of the MRLOA and ABX makes Antibody Inventions for such Antigen other than
through use of materials supplied by CGI pursuant [***]. Unless otherwise agreed
in writing by CGI, ABX shall be entitled to disclose and license such Antigen
Inventions to JTI to the extent (and only to the extent) required under the
MRLOA.
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9. CONFIDENTIALITY
9.1 Confidentiality. Except as expressly provided herein, CGI and ABX each
agree that, for the term of this Agreement and for five years thereafter, the
receiving party shall keep completely confidential and shall not publish or
otherwise disclose and shall not use for any purpose any information furnished
to it by the other party pursuant to this Agreement (including, without
limitation, knowhow), except to the extent that it can be established by the
receiving party by competent proof that such information:
(a) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving party;
(c) 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; or
(d) was subsequently lawfully disclosed to the receiving party by a
third party or independently developed by the receiving party without reference
to any information or materials disclosed by the disclosing party.
9.2 Permitted Disclosure. Notwithstanding Section 9.1 above and Section
13.16 below, each party may nevertheless disclose the other party's information
to the extent such disclosure is reasonably necessary in exercise of its rights
or performing its obligations hereunder or as required by law, provided that if
a party is required by law to make any such disclosure of the other party's
secret or confidential information, other than pursuant to a confidentiality
agreement, it will give reasonable advance notice to the other party of such
disclosure requirement and will use efforts consistent with prudent business
judgment to secure confidential treatment of such information prior to its
disclosure (whether through protective orders or confidentiality agreements or
otherwise).
10. INDEMNIFICATION
10.1 CGI. CGI agrees to indemnify and hold ABX and its directors, officers,
employees and agents harmless from and against any claims, damages, liabilities
or actions (including reasonable attorneys' fees and court and other expenses of
litigation) (collectively, the "Liabilities") suffered or incurred in connection
with third party (i) claims relating to or arising from the making, having made,
use, offer for sale, or sale of any Covered Product manufactured, used, sold or
otherwise distributed by CGI and its Affiliates or Sublicensees, (ii) claims
arising from the negligence or willful misconduct of CGI or the breach of CGI's
warranties under this Agreement or any derivatives thereof, or (iii) claims of
infringement to the extent such infringement is caused solely by ABX's use of an
Antigen provided by CGI or at the request of CGI, or ABX's production of
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antibodies to such an Antigen, in performing the immunization services and other
obligations under this Agreement; provided, however, that CGI shall not be
obligated to indemnify or hold harmless ABX or its directors, officers,
employees or agents for such Liabilities to the extent that such Liabilities
arise from the negligence or willful misconduct of ABX.
10.2 ABX. ABX agrees to indemnify and hold CGI and its directors, officers,
employees and agents harmless from and against any claims, damages, liabilities
or actions (including reasonable attorneys' fees and court and other expenses of
litigation) (collectively, the "Liabilities") suffered or incurred in connection
with third party claims relating to negligence or willful misconduct of ABX or
the breach of ABX's warranties under this Agreement; provided, however, that ABX
shall not be obligated to indemnify or hold harmless CGI or its directors,
officers, employees or agents for such Liabilities to the extent that such
Liabilities arise from the negligence or willful misconduct of CGI.
10.3 Procedure. If a party (an "Indemnitee") intends to claim
indemnification under this Article 10, it shall promptly notify the indemnifying
party (the "Indemnitor") in writing of any loss, claim, damage, liability or
action in respect of which the Indemnitee or its directors, officers, employees
or agents intend to claim such indemnification, and the Indemnitor shall have
the right to participate in, and, to the extent the Indemnitor so desires, to
assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an Indemnitee shall have the right to retain its own
counsel, with the fees and expenses to be paid by the Indemnitor, if
representation of such Indemnitee by the counsel retained by the Indemnitor
would be inappropriate due to actual or potential differing interests between
such Indemnitee and any other party represented by such counsel in such
proceeding. The indemnity agreement in this Article 10 shall not apply to
amounts paid in settlement of any loss, claim, damage, liability or action if
such settlement is effected without the consent of the Indemnitor, which consent
shall not be withheld or delayed unreasonably. The failure to deliver written
notice to the Indemnitor within a reasonable time after the commencement of any
such action, if prejudicial to its ability to defend such action, shall relieve
such Indemnitor of any liability to the Indemnitee under this Article 10, but
the omission so to deliver written notice to the Indemnitor shall not relieve it
of any liability that it may have to any party claiming indemnification
otherwise than under this Article 10. The party claiming indemnification under
this Article 10, its employees and agents, shall cooperate fully with the
Indemnitor and its legal representatives in the investigation of any action,
claim or liability covered by this indemnification.
11. REPRESENTATIONS AND WARRANTIES
11.1 ABX. ABX represents and warrants that: (i) it has the full right and
authority to enter into this Agreement; (ii) to the knowledge of ABX, there are
no existing or threatened actions, suits or claims pending with respect to the
subject matter hereof or the right of ABX to enter into and perform its
obligations under this Agreement; (iii) it has not entered and during the term
of this Agreement will not enter any other agreement inconsistent or in conflict
with this Agreement; (iv) it will not take any action that will cause a breach
of the GenPharm Cross License, the MRLOA or a
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Product License, which in any such case would adversely affect the rights of CGI
hereunder or under a CGI Product Sublicense; (v) Exhibit D hereto lists the
ABX-Controlled rights as of the Effective Date; and (vi) ABX will not, without
CGI's prior consent, amend the MRLOA or a Product License for a CGI Antigen or
the GenPharm Cross License in any manner that impairs CGI's rights under this
Agreement.
11.2 CGI. CGI represents and warrants that: (i) it has the full right and
authority to enter into this Agreement; (ii) to the knowledge of CGI, there are
no existing or threatened actions, suits or claims pending with respect to the
subject matter hereof or the right of CGI to enter into and perform its
obligations under this Agreement; (iii) it has not entered and during the term
of this Agreement will not enter any other agreement inconsistent or in conflict
with this Agreement; and (iv) it will not take any action, or fail to take any
action, under this Agreement or a CGI Product Sublicense that will cause a
breach of the GenPharm Cross License, the MRLOA or a Product License.
11.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
ABX AND CGI MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND
REGARDING COVERED PRODUCTS OR THE LICENSED TECHNOLOGY, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND VALIDITY OF TECHNOLOGY OR PATENT
CLAIMS, ISSUED OR PENDING. ALL HYBRIDOMAS PROVIDED TO CGI UNDER ARTICLE 3 OF
THIS AGREEMENT ARE PROVIDED "AS IS," AND ABX SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT
TO SUCH HYBRIDOMAS OR ANY IMMUNIZATION SERVICES PROVIDED PURSUANT TO ARTICLE 3
OF THIS AGREEMENT.
12. TERM; TERMINATION
12.1 Term. This Agreement shall commence on the Effective Date and, unless
earlier terminated pursuant to the other provisions of this Article 12, shall
continue in effect until June 28, 2016 and, thereafter, until the earlier of (i)
the date the MRLOA is no longer in effect or (ii) the twentieth anniversary of
the Effective Date.
12.2 Termination by CGI. CGI may terminate this Agreement at any time upon
sixty (60) days written notice to ABX.
12.3 Breach. If a party to this Agreement believes that another party to
this Agreement shall have committed a material breach hereunder, and such breach
shall have continued for sixty days after written notice thereof was provided to
the allegedly breaching party, unless the allegedly breaching party has cured
any such material breach or it has been waived by the notifying party prior to
the expiration of the sixty-day period, the party alleging the material breach
shall have the right to initiate an arbitration proceeding in accordance with
Section 13.12 below. If the arbitrators determine in such proceeding that a
material breach has occurred, they shall also determine an
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appropriate remedy, which may include termination of this Agreement, and if the
arbitrators do not order termination of the Agreement, the breaching party shall
cure such breach within thirty days following the final decision of the
arbitrators or such other time as directed by the arbitrators.
12.4 Effect of Termination; Accrued Rights and Survival of Terms.
Termination, relinquishment or expiration of this Agreement for any reason shall
be without prejudice to any rights which shall have accrued to the benefit of a
party prior to such termination, or expiration. Such termination, relinquishment
or expiration shall not relieve a party from obligations which are expressly
indicated to survive termination or expiration of this Agreement. Without
limiting the foregoing, Articles 3, 7, 8, 9, 10, 11, and 13 and Sections 2.6.1,
2.6.4, 2.6.5, 4.2, 5.3, and 6.5, and the payment obligations set forth in
Sections 2.2(c), 5.1 and 5.2 of this Agreement shall survive any expiration or
termination of this Agreement. As to those Covered Products (and only as to
those Covered Products) for which Abgenix has both (i) entered into a
contractual licensing obligation with a third party and (ii) also Selected the
corresponding Antigen (or identified such Antigen as an Antigen to be Selected
for the third party), the payment obligations set forth in Section 6.3 of this
Agreement shall survive expiration or termination of this Agreement. It is
understood that each CGI Product Sublicense executed prior to any expiration or
termination of this Agreement shall remain in effect in accordance with its
terms.
13. MISCELLANEOUS PROVISIONS
13.1 Governing Laws. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, without regard to conflicts
of law principles.
13.2 Waiver. It is agreed that no waiver by a party hereto of any breach or
default of any of the covenants or agreements herein set forth shall be deemed a
waiver as to any subsequent and/or similar breach or default.
13.3 Assignments. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated, in whole or part, by either party
without the prior written consent of the other, which consent shall not be
unreasonably withheld; provided, however, that either party may, without the
written consent of the other, assign its rights and delegate its obligations
hereunder to (i) any entity to which it has acquired all or substantially all of
the business or assets of the assigning party related to the subject matter of
this Agreement, or (ii) any successor corporation resulting from any merger or
consolidation with another corporation; provided, however, that ABX shall not
sell or transfer all or substantially all of its business or assets related to
the subject matter of this Agreement unless the assignee or transferee agrees in
writing to be bound by the terms of this Agreement. The terms and conditions of
this Agreement shall be binding on and inure to the benefit of the permitted
successors and assigns of the parties.
13.4 Independent Contractors. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be agents,
partners or joint venturers of the others for any purpose as a result of this
Agreement or the transactions contemplated thereby.
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13.5 Compliance with Laws. In exercising their rights under this Agreement,
the parties shall fully comply with the requirements of any and all applicable
laws, regulations, rules and orders of any governmental body having jurisdiction
over the exercise of rights under this Agreement.
13.6 Further Actions. Each party agrees to execute, acknowledge and deliver
such further instruments and to do all such other acts as may be necessary or
appropriate in order to carry out the purposes and intent of this Agreement.
13.7 Notices. Any notice required or permitted to be given to the parties
hereto shall be given in writing and shall be deemed to have been properly given
if delivered in person or when received if mailed by first class certified mail
to the other parties at the appropriate address as set forth below or to such
other addresses as may be designated in writing by the parties from time to time
during the term of this Agreement.
Cell Genesys, Inc.: Cell Genesys, Inc.
342 Lakeside Drive
Foster City, California 94404
Attn: President
Abgenix, Inc.: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, California 94555
Attn: President
13.8 Export Laws. Notwithstanding anything to the contrary contained
herein, all obligations of the parties are subject to prior compliance with the
export regulations of the United States and such other United States laws and
regulations as may be applicable, and to obtaining all necessary approvals
required by the applicable agencies of the government of the United States. CGI
shall use efforts consistent with prudent business judgment to obtain such
approvals.
13.9 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision and the parties shall discuss in good faith appropriate
revised arrangements.
13.10 Force Majeure. Nonperformance of a party (except nonperformance of
payment obligations) shall be excused to the extent that performance is rendered
impossible by strike, fire, earthquake, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure to perform
is beyond the reasonable control and not caused by the negligence, intentional
conduct or misconduct of the nonperforming party.
13.11 No Consequential Damages. IN NO EVENT SHALL A PARTY HERETO BE LIABLE
FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT
OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING
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WITHOUT LIMITATION LOST PROFITS ARISING FROM OR RELATING TO ANY BREACH OF THIS
AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES. NOTHING IN THIS SECTION
13.11 IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS
OF EITHER PARTY.
13.12 Dispute Resolution; Arbitration. The parties will attempt to resolve
any dispute under this Agreement by mutual agreement, and, if required, there
shall be a face-to-face meeting between the Chief Executive Officer of CGI and
the Chief Executive Officer of ABX. Any dispute under this Agreement which is
not settled after such meeting, shall be finally settled by binding arbitration,
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, by three arbitrators appointed in accordance with said
rules. The costs of the arbitration, including administrative and arbitrators'
fees, shall be shared equally by the parties to the arbitration. Each party
shall bear its own costs and attorneys' and witness' fees. The prevailing party
in any arbitration, as determined by the arbitration panel, shall be entitled to
an award against the other party in the amount of the prevailing party's costs
and reasonable attorneys, fees. The arbitration shall be held in San Francisco,
California. A disputed performance or suspended performances pending the
resolution of the arbitration must be completed within thirty days following the
final decision of the arbitrators. Any arbitration subject to this Section 13.12
shall be completed within six months from the filing of notice of a request for
such arbitration.
13.13 Complete Agreement. It is understood and agreed by the parties that
this Agreement constitutes the entire agreement, both written and oral, among
the parties with respect to the subject matter hereof, and that all prior
agreements respecting the subject matter hereof, either written or oral,
expressed or implied, shall be abrogated, canceled, and are null and void and of
no effect. No amendment or change hereof or addition hereto shall be effective
or binding on the parties hereto unless reduced to writing and executed by the
respective duly authorized representatives of the parties.
13.14 Counterparts. This Agreement 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 agreement.
13.15 Headings. The captions to the several Articles and Sections hereof
are not a part of this Agreement, but are included merely for convenience of
reference only and shall not affect its meaning or interpretation.
13.16 Nondisclosure. Except as set forth in Article 9 hereof, each of the
parties hereto agrees not to disclose to any third person the terms of this
Agreement without the prior written consent of the other parties hereto, except
to advisors, investors, licensees, sublicensees and others on a need to know
basis under circumstances that reasonably ensure the confidentiality thereof, or
to the extent required by law. Without limitation upon any provision of this
Agreement, each of the parties hereto shall be responsible for the observance by
its employees, consultants and contractors of the foregoing confidentiality
obligations.
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13.17 GenPharm Cross License. All rights and licenses granted hereunder
shall be subject to the GenPharm Cross-License, and to the extent that this
Agreement (or any license or CGI Product Sublicense granted or permitted under
this Agreement) purports to grant greater rights to any Grantee or third party
than is permitted under the GenPharm Cross License, such rights shall be granted
only to the extent permitted under the GenPharm Cross License, and the terms of
the GenPharm Cross License shall control.
13.18 Termination of Certain Agreements. The existing (i) Voting Agreement,
(ii) Immunization Services Agreement, and (iii) Gene Therapy Rights Agreement
between CGI and ABX, all effective as of July 15, 1996, shall be terminated and
hereby are terminated. Notwithstanding that any provisions of such Agreements
may be stated therein to survive, no provision of any such Agreement shall
survive such termination; provided, however, that any information received by
either party from the other required to be treated as confidential information
of the disclosing party pursuant to Article 5 of such Voting Agreement, Article
7 of such Immunization Services Agreement, or Article 8 of such Gene Therapy
Rights Agreement shall be treated as confidential information of the disclosing
party pursuant to Article 10 of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers as of the day and year first above
written, each copy of which shall for all purposes be deemed to be an original.
ABGENIX, INC. CELL GENESYS, INC.
By: /s/ R. Scott Greer By: /s/ Stephen A. Sherwin
--------------------------------- ------------------------------------
Printed Name: R. Scott Greer Printed Name: Stephen A. Sherwin
Title: President and CEO Title: Chairman and CEO
Date: Date:
------------------------------- ---------------------------------
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EXHIBIT A
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 31
EXHIBIT B
FORM OF CGI PRODUCT SUBLICENSE
THIS PRODUCT SUBLICENSE AGREEMENT (the "Agreement") effective the ____ day
of ___________, ____, (the "Effective Date") is made by and between ABGENIX,
INC., a Delaware corporation ("ABX"), and CELL GENESYS, INC., a Delaware
Corporation (hereinafter "CGI").
RECITALS
CGI and ABX have entered into that certain Gene Therapy Rights Agreement
dated as of November__, 1997 (the "Gene Therapy Rights Agreement"), pursuant to
which CGI has certain rights to acquire a license under the Licensed Technology;
CGI has exercised its rights under the Gene Therapy Rights Agreement to acquire
from ABX a license or sublicense, as the case may be, under the Licensed
Technology to commercialize Products in the field of Gene Therapy, as set forth
below and on the terms and conditions herein.
NOW, THEREFORE, for and in consideration of the covenants, conditions, and
undertakings hereinafter set forth, it is agreed by and between the parties as
follows:
1. DEFINITIONS.
For purposes of this Agreement, the terms set forth in this Article shall
have the meanings set forth below.
1.1 "ABX-Controlled Rights" shall mean all rights to patents or
technology (including biological materials) that are licensed to ABX pursuant to
(i) the MRLOA, (ii) Product Licenses from XT for Covered Products related to the
Product Antigen, or (iii) any other license or similar agreement granting ABX
rights to patents or technology to the extent, and only to the extent, that such
patent or technology is reasonably necessary to exercise the rights in (i) and
(ii) to make, have made, use, sell, offer to sell, or import Products in the
field of Gene Therapy (each such agreement being referred to as an "ABX
In-License"), in each case to the extent that ABX has the right under the terms
of the applicable ABX In-License to further license or sublicense such rights
during the term of this Agreement; provided, however, that "ABX- Controlled
Rights" shall not include Antigen Specific Technology. Attachment D lists the
ABX-Controlled Rights as of the Effective Date.
1.2 "ABX Proprietary Antigen" shall mean a specifically identified
Antigen for which an issued patent, or a pending patent application being
prosecuted in good faith in the United States or Europe, which patent or
application is owned or controlled by ABX prior to CGI's exercise of its Option
with respect to such Antigen in accordance with the Gene Therapy Rights
Agreement, contains claims to the following: (i) the composition of such
specifically identified Antigen or Genetic Material encoding such Antigen, (ii)
a method of therapeutic use of an antibody or other
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moiety which binds to such specifically identified Antigen, or (iii) the
composition of an antibody to such Antigen (excluding compositions of antibodies
resulting from immunization services under Article 3 of this Agreement).
1.3 "ABX Home Territory" shall mean the United States and its
territories, and Canada and Mexico.
1.4 "Affiliate" shall mean any entity which controls, is controlled by
or is under common control with ABX, CGI or a Sublicensee. An entity shall be
regarded as in control of another entity if it owns or controls at least fifty
percent (50%) of the shares of the subject entity entitled to vote in the
election of directors (or, in the case of an entity that is not a corporation,
for the election of the corresponding managing authority). Notwithstanding the
foregoing, neither ABX, CGI, JTI nor XT shall be considered to control, be
controlled by, be under common control with, or be an Affiliate of the other for
purposes of this Agreement.
1.5 "Antibody" shall mean a composition comprising a whole antibody or
fragment thereof, said antibody or fragment having been generated from the Mice
or Future Generation Mice or having been derived from nucleotide sequences
encoding, or amino acid sequences of, such an antibody or fragment.
1.6 "Antibody Product" shall mean any product comprising an Antibody
or Genetic Material encoding an Antibody wherein, in respect of each Antibody
Product, said Genetic Material does not encode multiple Antibodies.
1.7 "Antigen" shall have the meaning set forth in the Gene Therapy
Rights Agreement.
1.8 "Antigen-Specific Technology" shall mean any intellectual property
or technology or other proprietary rights of ABX in or to ABX Proprietary
Antigens, including: (i) compositions of such Antigens and Genetic Materials
encoding such Antigens; (ii) uses of such Antigens; (iii) antibodies that bind
to such Antigens and Genetic Materials encoding such antibodies, and cells that
express or secrete such antibodies; and (iv) uses of antibodies to such
Antigens; provided, however, that Antigen-Specific Technology shall not include
rights in and to such intellectual property created in connection with the
performance of services for CGI under Article 3 of the Gene Therapy Rights
Agreement to the extent such intellectual property is reasonably necessary for
CGI to make, use, sell, or otherwise exploit Covered Products in accordance with
a CGI Product Sublicense. Antigen-Specific Technology shall also include methods
to discover novel Antigens and methods of using Antigens other than to create
Antibodies pursuant to the Gene Therapy Rights Agreement.
1.9 "Future Generation Mice" shall have the meaning set forth in the
Gene Therapy Rights Agreement.
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1.10 "Genetic Material" shall mean a nucleotide sequence, including
DNA, RNA, and complementary and reverse complementary nucleotide sequences
thereto, whether coding or noncoding and whether intact or a fragment.
1.11 "Gene Therapy" shall mean the treatment or prevention of a
disease by means of [***].
1.12 "GenPharm Cross License" shall mean that certain Cross License
Agreement entered into by and between ABX, CGI, JTI, XT, and GenPharm
International, Inc. effective as of March 26, 1997, as the same may be amended
from time to time.
1.13 "GenPharm Rights" shall mean the rights granted to XT under the
GenPharm Cross License and sublicensed to ABX, to the extent that ABX has the
right under the terms of the GenPharm Cross License to further sublicense such
rights.
1.14 "IND" shall mean an Investigational New Drug Exemption for a
Product, as defined in the U.S. Food, Drug and Cosmetic Act and the regulations
promulgated thereunder, or its non-U.S. equivalent.
1.15 "JTI" shall mean Japan Tobacco Inc.
1.16 "JTI Home Territory" shall mean Japan, Taiwan, and South Korea
(including the territory now comprising North Korea, if reunited with South
Korea after the date hereof).
1.17 "License Fee" shall have the meaning set forth in Article 3 of
the Product License.
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1.18 "Licensed Technology" shall mean:
(i) the ABX-Controlled Rights;
(ii) subject matter (including patentable inventions,
information, biological materials and other intellectual property, and including
all patent- and other intellectual property rights therein) created by ABX in
performing immunization services with respect to the Product Antigen at the
request of CGI under Article 3 of the Gene Therapy Rights Agreement, in each
case to the extent such subject matter is reasonably necessary for CGI to make,
use, sell, offer to sell, or otherwise exploit Products in accordance with this
Agreement; and
(iii) all other subject matter (including patentable inventions,
information, biological materials and other intellectual property, and including
all patent- and other intellectual property rights therein) owned by ABX, in
each case to the extent that ABX has the right, under the terms of the
applicable agreement(s), if any, pursuant to which ABX acquired such rights, to
license or sublicense such rights to CGI hereunder during the term of this
Agreement, and in each case only to the extent such subject matter is reasonably
necessary to make, use, sell or otherwise exploit Products in accordance with
this Agreement; provided, however, that Antigen Specific Technology shall be
excluded from Licensed Technology.
1.19 "Master Research License and Option Agreement" or "MRLOA" shall
mean that certain Master Research License and Option Agreement entered into by
CGI, JTI and XT as of June 28, 1996 (and subsequently assigned by CGI to ABX),
as amended from time to time.
1.20 "Mice" shall have the meaning set forth in the Gene Therapy
Rights Agreement.
1.21 "Net Sales" shall mean the gross sales price charged by CGI or
its Affiliates and Sublicensees for sales of Product to non-Affiliate customers,
less (i) normal and customary rebates, cash and trade discounts, and credits for
returns and allowances, (ii) sales, consumption or other excise taxes or duties
imposed upon and paid by CGI and its Affiliates or Sublicensees, with respect to
such sales, and (iii) reasonable reserves for uncollectible accounts, as
reflected in financial statements of CGI and its Affiliates or Sublicensees, to
the extent such accounts are not actually collected (such gross sales price less
items (i)-(iii) above referred to in this Section 1.21 as "Gross Sales");
provided, however, that in the case of [***] "Net Sales" shall mean [***] of the
Gross Sales. "Net Sales" shall not include sales by CGI or its Sublicensees to
Affiliates for resale, provided that CGI or Sublicensee shall include the
amounts invoiced by such Affiliates to third parties on the resale of such
Product. In the case of [***] "Net Sales" shall include [***] but
notwithstanding any of the foregoing, shall not include [***]. Notwithstanding
the foregoing, "Net Sales" for Universal Donor Cell Products shall be [***] of
Gross Sales.
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1.22 "Product" shall mean any Antibody Product which incorporates (i)
an Antibody which binds to the Product Antigen or (ii) Genetic Material encoding
such an Antibody wherein said Genetic Material does not encode multiple
Antibodies. If ABX acquires the right to sell (and the right to sublicense the
right to sell) any other product derived through immunization of Mice or Future
Generation Mice with the Product Antigen, whether by amendment of the MRLOA, the
GenPharm Cross License, or otherwise, such products shall be included in the
definition of Product under this Agreement.
1.23 "Product Antigen" shall mean ____________________.
1.24 "Product License" shall mean a license granted from XT to ABX
pursuant to the terms of the MRLOA (including without limitation Sections 4.2,
5.2, 5.5, 5.6, 6.2, or 7.1 thereof) permitting ABX to commercialize certain
Antibody Products to the Product Antigen. Product Licenses shall include
Exclusive Worldwide Product Licenses, Exclusive Qualified Worldwide Product
Licenses, Co-Exclusive Worldwide Product Licenses, and Exclusive Home Territory
Product Licenses, as such terms are defined in the MRLOA. A true and correct
copy of the applicable Product License(s) related to the Product Antigen are
attached hereto as Attachment(s) ____, and any modifications or substitutions
thereto shall promptly be provided to CGI and added as Attachments hereto.
1.25 "Rest of the World" shall mean all countries of the world other
than the countries in the ABX Home Territory and JTI Home Territory.
1.26 "Sublicensee" shall mean a third party that is not an Affiliate
to whom CGI has granted a sublicense under the Licensed Technology to both make
and sell Products. "Sublicensee" shall also include a third party to whom CGI
has granted the right to distribute Product, provided that such third party is
responsible for marketing and promotion of Product within the applicable
territory. As used herein, a "Sublicense" shall mean an agreement or arrangement
pursuant to which such a sublicense or distribution right has been granted.
1.27 "Territory" shall mean [all the countries of the world]* [the ABX
Home Territory and the Rest of the World]** [the ABX Home Territory and the Rest
of the World]*** [the ABX Home Territory]****.
1.28 "Transgenic Product" shall have the meaning set forth in the
GenPharm Cross License.
1.29 "Universal Donor Cell Product" shall mean a Universal Receptor
Product that is also entirely a Universal Donor Cell (as that term is defined in
Section 1.31 below).
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1.30 "Universal Receptor Product" shall mean a substance that is
developed utilizing both (i) an Antibody and (ii) Universal Receptor Technology.
1.31 "Universal Receptor Technology" shall mean technology for
universal receptors [***]. As used herein: (i) "universal receptor" shall mean a
receptor [***].
1.32 "XT" shall mean Xenotech, L.P., a California limited partnership.
1.33 Terminology Regarding Antibody Products, Products, and Licenses.
For purposes of clarification, it is understood and agreed that (i) references
to Antibody Products or Products "to X," "for X," "related to X," and "with
respect to X" and similar references, where "X" is an Antigen (including without
limitation any Product Antigen or Sublicense Product Antigen), shall mean
Antibody Products or Products which incorporate (A) an Antibody which binds to
such Antigen or (B) Genetic Material encoding such an Antibody wherein said
Genetic Material does not encode multiple Antibodies, and (ii) references to a
license or sublicense (including without limitation any Product License, CGI
Product Sublicense, or Direct Third Party Sublicense) "to X," "for X," "related
to X," and "with respect to X" and similar references, where "X" is an Antigen,
shall mean such licenses or sublicenses conveying rights to Antibody Products
for such Antigen.
2. LICENSE GRANT
2.1 Grant under Product License. Subject to the terms and conditions of
this Agreement, ABX hereby grants to CGI [an exclusive license or sublicense, as
the case may be, under the Licensed Technology, to make and have made Product
anywhere in the world and to use, sell, lease, offer to sell or lease, import,
export, otherwise transfer physical possession of or otherwise transfer title to
Product in the field of Gene Therapy in the Territory]* [(i) a nonexclusive
license or sublicense, as the case may be, under the Licensed Technology, to
make and have made Product anywhere in the world and (ii) an exclusive license
under the Licensed Technology to use,
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sell, lease, offer to sell or lease, import, export, otherwise transfer physical
possession of or otherwise transfer title to Product in the field of Gene
Therapy in the Territory]** [(i) a nonexclusive license or sublicense, as the
case may be, under the Licensed Technology, to make and have made Product
anywhere in the world and (ii) an exclusive license under the Licensed
Technology and to use, sell, lease, offer to sell or lease, import, export,
otherwise transfer physical possession of or otherwise transfer title to Product
in the field of Gene Therapy in the Territory]*** [(i) a nonexclusive license or
sublicense, as the case may be, under the Licensed Technology, to make and have
made Product anywhere in the world and (ii) a license under the Licensed
Technology and to use, sell, lease, offer to sell or lease, import, export,
otherwise transfer physical possession of or otherwise transfer title to Product
in the field of Gene Therapy exclusively in the ABX Home Territory and
co-exclusively with JTI (or its Affiliates or Sublicensees and their Affiliates)
in the Rest of the World]****. To the extent such license or sublicense is
exclusive or co-exclusive, such license or sublicense shall be exclusive even as
to ABX, and whether non-exclusive, exclusive or co-exclusive, shall include the
right to grant and authorize sublicenses for exploitation worldwide; provided,
however, that CGI may not, under this license, grant sublicenses to any rights
to the Mice.
2.2 Grant Under Research License. Subject to the terms and conditions of
this Agreement, ABX hereby grants to CGI a nonexclusive sublicense under the
Licensed Technology to develop, make, have made, use, import or export or
otherwise transfer physical possession of (but not to sell, lease, offer to sell
or lease, or otherwise transfer title to) Products and cells that express or
secrete Antibodies to the Product Antigen, in each case solely for purposes
relating to or in connection with research or development (i) of Products for
use in the field of Gene Therapy or (ii) involving Genetic Material when used
with viral or nonviral gene transfer systems. CGI shall have the right to
sublicense the rights granted under this Section 2.2 upon the approval of ABX,
which approval shall not be unreasonably withheld. In the event that ABX refuses
to approve such a sublicense, ABX shall, to the extent that ABX has the right to
do so, grant at CGI's request a nonexclusive sublicense of such rights directly
to a non-Affiliate third party designated by CGI on terms and conditions
substantially identical to the applicable terms and conditions of this
Agreement.
2.3 Third Party Rights. It is understood and agreed that, as to
ABX-Controlled Rights, the grant of rights under this Article 2 shall be subject
to and limited in all respects by the terms of the applicable ABX In-License(s)
pursuant to which such ABX-Controlled Rights were granted to ABX. It is further
understood and agreed that, without limiting the foregoing, the rights granted
to CGI hereunder, including without limitation any grant of "exclusive" rights,
shall be subject to the rights granted to or retained by GenPharm under the
GenPharm Cross-License. It is understood and agreed that the rights and
sublicenses granted to CGI under this Article 2 or any other provision of this
Agreement shall be subject in all respects to the GenPharm Cross License, and
that to the extent this Agreement purports to grant greater rights or
sublicenses to CGI than are permitted under the GenPharm Cross License, any
grant of rights or sublicenses to CGI hereunder shall be limited to the extent
that ABX may grant such rights and sublicenses pursuant to the GenPharm Cross
License.
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2.4 Direct Sublicenses to Partners.
(a) From time to time, CGI may request ABX to sublicense directly to a
third party part or all of the GenPharm Rights (and other ABX-Controlled Rights,
if any, which ABX cannot, pursuant to the terms of the applicable ABX
In-License, sublicense to CGI with the right to grant further sublicenses)
sublicensed under Section 2.1, and in such event ABX shall grant such sublicense
under the such rights with respect to the Product Antigen directly to the third
party on terms and conditions substantially identical to this Agreement except
as provided below (each such sublicense a "Direct Third Party Sublicense"). In
such event, CGI shall notify ABX in writing of the Products to be sublicensed to
such third party, as well as the field, territory, duration, and other
limitations of such Direct Third Party Sublicense; provided, however, that the
rights granted under any such Direct Third Party Sublicense for the Product
Antigen shall in no event exceed the scope of the rights granted to CGI under
this Agreement. If, at the time of the request, CGI is an Affiliate of ABX (as
the term Affiliate is defined in the GenPharm Cross License), then CGI shall
terminate certain of its rights under the Direct Sublicense of GenPharm Rights
entered into by and between CGI and XT effective as of November __, 1997 by
completing and delivering to XT the attached form Notice of Partial Termination
of Direct Sublicense attached hereto as Attachment C. For the removal of doubt,
it is understood that the Direct Third Party Sublicense shall include provisions
substantially identical to Articles 5, 6, 7, 9, 10, and 11 and Sections 3.3,
4.1, 4.3, and 8.2 of this Agreement and such modifications of Article 2 as are
appropriate to define the scope of the sublicense to be granted. Upon such a
request by CGI, ABX shall cooperate with CGI and the third party designated by
CGI to prepare and execute such Direct Third Party Sublicense in a prompt and
expeditious manner.
(b) CGI agrees that the sublicense granted to CGI under Section 2.1
above shall be subordinate in all respects to any Direct Third Party Sublicense
entered into in accordance with this Section 2.4 (i.e., the sublicense granted
to CGI under Section 2.1 shall be of no force or effect to the extent that the
GenPharm Cross License does not permit both the sublicense to CGI under Section
2.1 and the Direct Third Party Sublicense). If, following the grant of a Direct
Third Party Sublicense in accordance with this Section 2.4 to a third party
(such third party being referred to as an "Initial Direct Third Party
Sublicensee," and such sublicense being referred to as an "Initial Direct Third
Party Sublicense"), CGI requests ABX to grant to a different third party a
Direct Third Party Sublicense (a "Subsequent Direct Third Party Sublicense")
with respect to Products and/or other subject matter within the scope of the
Initial Third Party Direct Sublicense which is then in effect, ABX shall not be
obligated to grant such Subsequent Direct Third Party Sublicense unless the
Initial Direct Third Party Sublicensee signs and provides to ABX a Subordination
Statement in the form attached hereto as Attachment A. For purposes of
clarification, it is understood that, to the extent that any Direct Third Party
Sublicense terminates for any reason, for so long as this Agreement remains in
effect, the rights granted to CGI under this Agreement shall no longer be
subordinate to such Direct Third Party Sublicense.
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3. PAYMENTS.
3.1 Amounts Payable Under Product License. CGI shall reimburse ABX for all
amounts that ABX is required to pay to XT under the Product License related to
the Product Antigen for (i) the License Fee under Article 3 of such Product
License and (ii) the reimbursements, if any, due to XT from ABX under Section
5.1 of such Product License, and (iii) royalties and other amounts owed to XT
under such Product License on Net Sales of Product by or under authority of CGI.
3.2 Third Party Royalties Payable by ABX. ABX will be responsible for the
payment of [***]. In addition to the payments otherwise due to ABX under this
Agreement, CGI shall reimburse ABX for [***]. CGI shall continue any such
reimbursement payments to ABX until [***]. In the event that ABX enters into any
license or similar agreement after the Effective Date which would be [***] , ABX
shall promptly notify CGI and provide to CGI a copy of all terms and conditions
of such license or agreement that would affect CGI hereunder; in such event, CGI
shall [***], unless CGI promptly after receiving CGI's notice and a copy of the
above described terms and conditions of such license or agreement notifies ABX
that CGI elects not to accept such terms, in which event the license or
agreement shall [***] for purposes of this Agreement.
3.3 Royalties Payable by CGI. CGI, its Affiliate, and/or its Sublicensee
shall be responsible for the payment of any royalties, license fees and
milestone and other payments due to third parties under licenses or similar
agreements entered into by such parties to allow the manufacture, use or sale of
Product.
4. ACCOUNTING AND RECORDS.
4.1 Royalty Reports; Payments, Invoices. After the first commercial sale of
Product on which royalties are required to be paid by CGI under Article 3 above,
CGI agrees to make quarterly written reports to ABX within sixty (60) days after
the end of each calendar quarter, stating in each such report the number,
description, and aggregate Net Sales of Product sold during the calendar quarter
upon which a royalty is payable under Article 3 above. Concurrently with the
making of such reports, CGI shall pay to ABX all amounts payable pursuant to
Article 3 above which are based upon Net Sales of Product, including such
amounts (if any) due pursuant to Section 3.2 and amounts equal to the amounts
that ABX owes to XT for (i) royalties at the applicable rate specified in
Section 4.1, 4.2 or 4.4 of the Product License related to the Product Antigen,
and
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(ii) all royalties payable pursuant to Section 5.1 of such Product License. ABX
shall invoice CGI for all other amounts due under this Agreement, and CGI shall
pay such amounts to ABX within thirty (30) days of receiving such invoice. All
payments to ABX hereunder shall be made in U.S. Dollars to a bank account
designated by ABX.
4.2 Early Third Party License Payments. If ABX is obligated to pay
royalties to a third party prior to ninety days after the end of the calendar
quarter, ABX shall so notify CGI and CGI shall provide the reports and payments
set forth in Section 4.1 above with respect to such royalties not later than ten
days before the date such payments are due to the third party. ABX shall provide
CGI with an invoice setting forth the royalties ABX must pay third parties with
respect to CGI's activities in the Territory in the preceding quarter and the
date such payments are due the third parties, and CGI shall pay such invoices
within thirty days of receipt of such invoice; provided, however, that if ABX is
invoiced for such amounts by XT or another third party and must pay such amounts
less than forty (40) days after receiving such invoice, ABX shall invoice such
amounts to CGI within ten (10) days of receiving such invoice from the third
party, and CGI shall pay such amounts before the later of (i) 20 days after
receiving such invoice from ABX or (ii) five (5) days prior to the date such
amount is due to the third party from ABX.
4.3 Records; Inspection. CGI shall keep (and cause its Affiliates and
Sublicensees to keep) complete, true and accurate books of account and records
for the purpose of determining the royalty amounts payable to ABX under this
Agreement. Such books and records shall be kept at the principal place of
business of CGI or its Affiliates or Sublicensees, as the case may be, for at
least three years following the end of the calendar quarter to which they
pertain. Such records of CGI or its Affiliates will be open for inspection
during such three-year period by a representative of ABX for the purpose of
verifying the royalty statements. CGI shall require each of its Sublicensees to
maintain similar books and records and to open such records for inspection
during the same three-year period by a representative of CGI reasonably
satisfactory to ABX on behalf of, and as required by, ABX for the purpose of
verifying the royalty statements. All such inspections may be made no more than
once each calendar year, at reasonable times mutually agreed by CGI and ABX. The
representative of ABX will be obliged to execute a reasonable confidentiality
agreement prior to commencing any such inspection. Inspections conducted under
this Section 4.3 shall be at the expense of ABX, unless a variation or error
producing an increase exceeding [***] of the amount stated for the period
covered by the inspection is established in the course of any such inspection,
whereupon all costs relating thereto will be paid by CGI. Upon the expiration of
three years following the end of any fiscal year, the calculation of royalties
payable with respect to such year shall be binding and conclusive, and CGI shall
be released from any liability or accountability with respect to royalties for
such year.
4.4 Currency Conversion. If any currency conversion shall be required in
connection with the calculation of royalties hereunder, such conversion shall be
made using the selling exchange rate for conversion of the foreign currency into
U.S. Dollars, quoted for current transactions reported in The Wall Street
Journal for the last business day of the calendar quarter to which such payment
pertains.
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4.5 Late Payments. Any payments due from CGI that are not paid on the date
such payments are due under this Agreement shall bear interest to the extent
permitted by applicable law at the prime rate as reported by the Bank of America
in San Francisco, California on the date such payment is due, plus an additional
two percent, calculated on the number of days such payment is delinquent. This
Section 4.5 shall in no way limit any other remedies available to any party.
4.6 Withholding Taxes. All payments required to be made pursuant to Article
3 hereof shall be without deduction or 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, such taxes referred to herein as
"Withholding Taxes." Withholding Taxes shall be the sole responsibility of the
withholding party. The withholding party shall provide a certificate evidencing
payment of any Withholding Taxes hereunder.
5. DUE DILIGENCE.
5.1 Reasonable Commercial Efforts: [***] Milestone.
5.1.1 CGI agrees to use commercially reasonable efforts consistent
with prudent business judgment to commercialize Product, by the [***] by CGI, or
its Affiliate or Sublicensee, in the United States (or Japan, if Japan is within
the Territory) within such period of time as may be agreed upon by the parties
after good faith negotiations taking into account factors relating to the
Product Antigen or, if no such period is agreed upon, [***] from the Effective
Date.
5.1.2 Notwithstanding the foregoing, CGI shall be required actively
and continuously to [***] by CGI, or its Affiliate or Sublicensee, as soon as
practicable after the Effective Date using reasonable commercial efforts
consistent with prudent business judgment. After [***], CGI, or its Affiliate
or Sublicensee, shall be required to have [***] and to be actively conducting
clinical trials in pursuit of regulatory approval for the Product in the United
States (or Japan, if Japan is with the Territory) until such Product may be
sold commercially in the United States (or Japan, respectively).
5.2 Failure to Meet Due Diligence Obligation.
5.2.1 If the diligence requirements set forth in Section 5.1 are not
met by CGI (or its Affiliates or Sublicensees) in the United States or in Japan,
CGI's rights hereunder shall terminate upon written notice by ABX to CGI and
subject to Sections 5.3, 5.4 and 10.3 below.
5.2.2 Notwithstanding Section 5.2.1, the license granted hereunder to
CGI shall not terminate by reason of a delay in meeting the [***] milestone set
forth in Section 5.1.1, to the extent that prudent business judgment, based on
circumstances outside of CGI's reasonable control, reasonably justifies such
delay.
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5.3 Dispute Resolution. In the event that a dispute arises whether the
diligence requirements in this Article 5 have been met or circumstances exist
which CGI believes justifies a failure on its part to meet such obligation, the
parties will attempt to resolve any dispute by mutual agreement during a period
of 30 days following CGI's receipt of the notice under Section 5.2.1.
5.4 Arbitration. In the event that the parties are unable to resolve such
dispute pursuant to Section 5.3 above, such dispute shall be settled between ABX
and CGI by binding arbitration as set forth in Section 11.12. If the arbitrator
determines that the party acted in good faith, but failed to meet its
obligations under Section 5.1 above, the license granted to such party shall not
terminate unless the nonperforming party fails to cure such non-performance
within a reasonable period of time, as determined by the arbitrator.
5.5 Funding and Conduct. Except for the immunization services described in
the Gene Therapy Rights Agreement, CGI shall independently furnish and be
responsible for funding and conducting all of its preclinical and clinical
research and development of Product, at its own expense.
6. INTELLECTUAL PROPERTY.
6.1 Prosecution. Subject to Section 6.5, ABX or its licensor, as they may
agree, shall have the right to control the preparing, filing, prosecuting and
maintaining of patents and patent applications worldwide within the Licensed
Technology and conducting any interferences, oppositions, reexaminations, or
requesting reissues or patent term extensions with respect to the Licensed
Technology. ABX shall keep CGI reasonably informed as to the status of such
patent matters where the patent or patent application contains one or more
compositions of matter claims covering (i) one or more Antibodies which binds to
the Product Antigen or (ii) Genetic Material encoding such Antibodies wherein
said Genetic Material does not encode multiple Antibodies (each such claim a
"Product Composition Claim"), including without limitation by providing CGI the
opportunity to review and comment on any substantive documents which will be
filed in any patent office, and providing CGI copies of any substantive
documents received by ABX from such patent offices including notice of all
interferences, reexaminations, oppositions or requests for patent term
extensions. CGI shall provide reasonable cooperation and assistance to ABX in
connection with such activities, at ABX's request and expense. If ABX has the
right to prepare, file, prosecute or maintain patents or patent applications
containing one or more Product Composition Claims and notifies CGI that is does
not desire to do so in any country in the Territory, then CGI may prepare, file,
prosecute or maintain such patent or patent application at CGI's expense on
ABX's behalf.
6.2 Enforcement. Subject to Section 6.5, in the event that CGI becomes
aware that any Licensed Technology necessary for the practice of the license
granted herein is infringed or misappropriated by a third party or is subject to
a declaratory judgment action arising from such infringement, CGI shall promptly
notify ABX and ABX shall thereafter promptly notify the owner of such
intellectual property. ABX or its licensor, as they may agree, shall have the
exclusive right at its expense to bring an enforcement proceeding, or defend any
declaratory judgment action, involving any Licensed Technology. ABX shall keep
CGI reasonably informed of the progress of
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such claim, suit or proceeding involving enforcement or defense of the Licensed
Technology. Any recovery received by ABX as a result of any such claim, suit or
proceeding shall be used first to reimburse ABX for all expenses (including
attorneys, and professional fees) incurred in connection with such claim, suit
or proceeding, and the remaining amount (if any) retained by ABX after paying
amounts ABX is obligated to pay to third parties in respect of such amount
pursuant to agreements within the ABX-Controlled Rights divided, to the extent
that the recovery expressly represents lost profits on sales of Product within
the field of Gene Therapy because of the infringer, in equal shares between ABX
and CGI. Notwithstanding the foregoing, if ABX (i) has the right to bring an
enforcement proceeding, or defend a declaratory judgment action, involving a
Product Composition Claim and (ii) notifies CGI that it does not desire to
pursue or defend such an action, then CGI may at its expense bring or defend
such action in consultation with ABX; provided, however, that (i) ABX shall have
the right to join such proceeding at any time at its own expense, (ii) CGI shall
not admit the invalidity or unenforceability of any patent rights within the
Licensed Technology without ABX's prior written consent, and (iii) if ABX does
not join the action, any recovery obtained by CGI shall be used first to
reimburse CGI for all expenses (including attorneys, and professional fees)
incurred in connection with such claim, suit or proceeding, and the remaining
amount (if any) retained by CGI after paying amounts CGI is obligated to pay to
third parties in respect of such amount pursuant to agreements within the
ABX-Controlled Rights shall be retained by CGI; provided, however, such
remainder shall, to the extent that the recovery expressly represents lost
profits on sales of Product within the field of Gene Therapy because of the
infringer, be treated as Net Sales of Product by CGI for purposes of determining
royalties under this Agreement.
6.3 Infringement Claims. Subject to Section 6.5, if the production, sale or
use of Product pursuant to this Agreement results in any claim, suit or
proceeding alleging patent infringement against CGI (or its Affiliates or
Sublicensees), CGI shall promptly notify ABX thereof in writing setting forth
the facts of such claim in reasonable detail. CGI shall keep ABX reasonably
informed of all material developments in connection with any such claim, suit or
proceeding as it relates to the Licensed Technology. Notwithstanding the above,
CGI shall not be able to settle any such claim, suit or proceeding if such
settlement involves any admission of the invalidity of the Licensed Technology
without written consent from ABX.
6.4 Patent Marking. CGI agrees to mark and have its Affiliates and
Sublicensees mark all Products sold pursuant to this Agreement in accordance
with the applicable statutes or regulations in the country or countries of
manufacture and sale thereof.
6.5 Limitation. Notwithstanding any other provision in this Article 6, the
parties acknowledge and understand that (i) ABX shall not be obligated to
prepare, file, prosecute, and maintain patents and patent applications, or to
bring or pursue enforcement proceedings or defend declaratory judgement actions
regarding the Licensed Technology if, and to the extent that, ABX is not
entitled to do so under one or more agreements within the ABX-Controlled Rights,
and (ii) any rights conveyed under this Article 6 permitting CGI to prepare,
file, prosecute and maintain certain patents and patent applications, or to
bring and pursue enforcement proceedings, or defend declaratory judgment
actions, regarding the Licensed Technology, shall be subject to ABX's
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agreements within the ABX-Controlled Rights, and are conveyed only to the extent
permitted under such agreements.
7. CONFIDENTIALITY.
7.1 Confidential Information. Except as expressly provided herein, CGI and
ABX each agree that, for the term of this Agreement and for five years
thereafter, the receiving party shall keep completely confidential and shall not
publish or otherwise disclose and shall not use for any purpose any information
furnished to it by the other party pursuant to this Agreement (including,
without limitation, knowhow) except to the extent that it can be established by
the receiving party by competent proof that such information:
(a) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving party;
(c) 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; or
(d) was subsequently lawfully disclosed to the receiving party by a
third party or independently developed by the receiving party without reference
to any information or materials disclosed by the disclosing party.
7.2 Permitted Disclosures. Notwithstanding Sections 7.1 above and 11.16
below, each party may nevertheless disclose the other party's information to the
extent such disclosure is reasonably necessary in filing or prosecuting patent
applications, prosecuting or defending litigation, complying with applicable
governmental regulations (including without limitation any disclosure
requirements for publicly traded companies) or otherwise submitting information
to tax or other governmental authorities, making a permitted sublicense or other
exercise of its rights hereunder (including the grant of sublicenses) or
conducting clinical trials, provided that if a party is required by law to make
any such disclosure of the other party's secret or confidential information,
other than pursuant to a confidentiality agreement, it will give reasonable
advance notice to the other party of such disclosure requirement and will use
efforts consistent with prudent business judgment to secure confidential
treatment of such information prior to its disclosure (whether through
protective orders or otherwise). Notwithstanding the foregoing, ABX shall not,
except as required by law, disclose to third parties clinical data or regulatory
filings received from CGI except as agreed in writing by CGI.
8. SUBLICENSES; OBLIGATIONS UNDER XT PRODUCT LICENSE.
8.1 Sublicenses. Pursuant to Article 2 herein, CGI will have the right to
grant and authorize sublicenses to third parties; provided, however, the CGI
shall remain responsible for any
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payments due ABX for Net Sales of Product by any Sublicensee. [***]. Any
sublicense granted by CGI pursuant to this Agreement shall provide that the
Sublicensee will be subject to the applicable terms of this Agreement. CGI shall
provide ABX with a copy of relevant portions of each sublicense agreement, as
reasonably required by ABX.
8.2 Obligations Under Agreements With Third Parties. The sublicenses
granted by ABX to CGI under the ABX-Controlled Rights will be subject to the
applicable terms of the agreements pursuant to which ABX acquired such
ABX-Controlled Rights, including without limitation the Product License. It is
understood that ABX may provide a copy of some or all of this Agreement to XT
and other parties to such agreements.
9. REPRESENTATIONS AND WARRANTIES.
9.1 ABX. ABX represents and warrants that:
(i) it has the full right and authority to enter into this Agreement
and grant the rights and licenses granted herein;
(ii) it has not previously granted and will not grant any rights
inconsistent or in conflict with the rights and licenses granted to CGI herein;
(iii) there are no existing or threatened actions, suits or claims
pending against ABX with respect to the Licensed Technology or the right of ABX
to enter into and perform its obligations under this Agreement;
(iv) it has not previously granted, and will not grant during the term
of this Agreement, any right, license or interest in and to the Licensed
Technology, or any portion thereof, with respect to the manufacture, sale, offer
for sale, use, or import of the Product in the Gene Therapy field; and
(v) Attachment B hereto sets forth all ABX-Controlled Rights as of the
Effective Date; ABX shall not terminate (or permit to be terminated), or alter
or amend, any of the ABX-Controlled Rights in a manner that adversely affects
or may adversely affect CGI, without CGI's prior written consent.
9.2 CGI. CGI represents and warrants that:
(i) it has the full right and authority to enter into this Agreement;
(ii) to its knowledge, there are no existing or threatened actions,
suits or claims pending with respect to the subject matter hereof or the right
of CGI to enter into and perform its obligations under this Agreement; and
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(iii) it has not entered and during the term of this Agreement will
not enter any other agreement inconsistent or in conflict with this Agreement.
9.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
ABX MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, REGARDING PRODUCTS OR THE LICENSED TECHNOLOGY, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT, AND VALIDITY OF LICENSED TECHNOLOGY CLAIMS, ISSUED OR
PENDING.
9.4 Effect of Representations and Warranties. It is understood that if the
representations and warranties under this Article 10 are not true and accurate
and a party incurs liabilities, costs or other expenses as a result of such
falsity, the party at fault shall indemnify, defend and hold the injured party
harmless from and against any such liabilities, costs or expenses incurred,
provided that the party at fault receives prompt notice of any claim against the
injured party resulting from or related to such falsity and the sole right to
control the defense or settlement thereof.
10. TERM AND TERMINATION.
10.1 Effectiveness. This Agreement shall become effective as of the
Effective Date and the license rights granted by ABX under Article 2 above shall
be in full force and effect as of such date.
10.2 Term. Unless earlier terminated pursuant to the other provisions of
this Article 10, this Agreement shall continue in full force and effect until
the later of
(i) the expiration of the last to expire patent within the Licensed
Technology claiming Product; or
(ii) the twentieth anniversary of the Effective Date.
The licenses granted under Article 2 shall survive the expiration (but, except
as expressly provided in Section 10.5 below, not an earlier termination) of this
Agreement; provided that such licenses shall in such event become nonexclusive.
10.3 Termination for Breach. Either party to this Agreement may terminate
this Agreement in the event the other party shall have materially breached or
defaulted in the performance of any of its material obligations hereunder, and
such shall have continued for sixty days after written notice thereof was
provided to the breaching party by the nonbreaching party that terminates the
Agreement as to such party. Any termination shall become effective at the end of
such sixty day period unless the breaching party has cured any such breach or
default prior to the expiration of the sixty day period. However, if the party
alleged to be in breach of this Agreement disputes such breach within such sixty
day period, the non-breaching party shall not have the right to terminate this
Agreement unless it has been determined by an arbitration proceeding in
accordance
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<PAGE> 47
with Section 11.12 below that this Agreement was materially breached, and the
breaching party fails to cure such breach within thirty days following the final
decision of the arbitrators or such other time as directed by the arbitrators.
10.4 Other Termination Rights. CGI may terminate this Agreement and the
license granted herein, in its entirety or as to any particular patent within
the Licensed Technology in a particular country, at any time, by providing ABX
ninety (90) days written notice. In the event of termination as to a particular
country, the subject patent in such country shall cease to be within the
Licensed Technology (and the ABX- Controlled Rights, if applicable) for all
purposes of this Agreement.
10.5 Effect of Termination.
10.5.1 Termination of this Agreement for any reason shall not release
either party hereto from any liability which at the time of such termination has
already accrued to the other party or which is attributable to a period prior to
such termination.
10.5.2 In the event this Agreement is terminated for any reason, CGI and
its Affiliates and Sublicensees shall have the right to sell or otherwise
dispose (consistent with all applicable regulations and law) of the stock of any
Product subject to this Agreement then on hand. Upon termination of this
Agreement by ABX for any reason, any sublicense granted by CGI hereunder shall
survive, provided that upon request by ABX, such Sublicensee promptly agrees in
writing to be bound by the applicable terms of this Agreement.
10.5.3 This Agreement, including the license granted in Article 2, is
independent of, and shall not be affected by, any breach or termination of the
Gene Therapy Rights Agreement or any other agreement between the parties or
their Affiliates. In the event of the termination of the Gene Therapy Rights
Agreement, the rights and obligations of the parties hereto under Article 10 of
that agreement (Indemnification) shall be deemed to be part of this Agreement.
10.5.4 Section 4.3 and Articles 7, 9, and 11 shall survive the expiration
and any termination of this Agreement for any reason.
11. MISCELLANEOUS.
11.1 Governing Laws. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, without regard to conflicts
of law principles.
11.2 Waiver. It is agreed that no waiver by any party hereto of any breach
or default of any of the covenants or agreements herein set forth shall be
deemed a waiver as to any subsequent and/or similar breach or default.
11.3 Assignment. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated, in whole or part, by either party
without the prior written consent of
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<PAGE> 48
the other, which consent shall not be unreasonably withheld; provided, however,
that either party may, without the written consent of the other, assign its
rights and delegate its obligations hereunder to (i) any entity to which it has
acquired all or substantially all of the business or assets of the assigning
party related to the subject matter of this Agreement, or (ii) any successor
corporation resulting from any merger or consolidation with another corporation;
provided, however, that neither party shall sell or transfer all or
substantially all of its business or assets related to the subject matter of
this Agreement unless the assignee or transferee agrees in writing to be bound
by the terms of this Agreement. The terms and conditions of this Agreement shall
be binding on and inure to the benefit of the permitted successors and assigns
of the parties.
11.4 Independent Contractors. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be agents,
partners or joint venturers of the others for any purpose as a result of this
Agreement or the transactions contemplated thereby.
11.5 Compliance with Laws. In exercising their rights under this Agreement,
the parties shall fully comply with the requirements of any and all applicable
laws, regulations, rules and orders of any governmental body having jurisdiction
over the exercise of rights under this Agreement.
11.6 No Implied Obligations. Except as expressly provided in Article 5
above, nothing in this Agreement shall be deemed to require CGI to exploit the
Licensed Technology nor to prevent CGI from commercializing products similar to
or competitive with any Product, in addition to or in lieu of such Product.
11.7 Notices. Any notice required or permitted to be given to the parties
hereto shall be given in writing and shall be deemed to have been properly given
if delivered in person or when received if mailed by first class certified mail
to the other party at the appropriate address as set forth below or to such
other addresses as may be designated in writing by the parties from time to time
during the term of this Agreement.
Cell Genesys, Inc.: Cell Genesys, Inc.
342 Lakeside Drive
Foster City, California 94404
Attn: President
Abgenix, Inc.: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, California 94555
Attn: President
11.8 Export Laws. Notwithstanding anything to the contrary contained
herein, all obligations of ABX and CGI are subject to prior compliance with
United States export regulations and such other United States laws and
regulations as may be applicable, and to obtaining all necessary approvals
required by the applicable agencies of the government of the United States. CGI
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<PAGE> 49
shall use efforts consistent with prudent business judgment to obtain such
approvals. ABX shall cooperate with CGI and shall provide assistance to CGI as
reasonably necessary to obtain any required approvals.
11.9 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision and the parties shall discuss in good faith appropriate
revised arrangements.
11.10 Force Majeure. Nonperformance of a party (except nonperformance of
payment obligations) shall be excused to the extent that performance is rendered
impossible by strike, fire, earthquake, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure to
perform, is beyond the reasonable control and not caused by the negligence,
intentional conduct or misconduct of the nonperforming party.
11.11 No Consequential Damages. IN NO EVENT SHALL A PARTY HERETO BE LIABLE
FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT
OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING WITHOUT LIMITATION LOST
PROFITS ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF
ANY NOTICE OF SUCH DAMAGES. NOTHING IN THIS SECTION 11.11 IS INTENDED TO LIMIT
OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY.
11.12 Dispute Resolution; Arbitration. The parties will attempt to resolve
any dispute under this Agreement by mutual agreement, and, if required, there
shall be a face-to-face meeting between the Chief Executive Officer of CGI and
the Chief Executive Officer of ABX. Any dispute under this Agreement which is
not settled after such meeting, shall be finally settled by binding arbitration,
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, by three arbitrators appointed in accordance with said
rules. The costs of the arbitration, including administrative and arbitrators'
fees, shall be shared equally by the parties to the arbitration. Each party
shall bear its own costs and attorneys' and witness' fees. The prevailing party
in any arbitration, as determined by the arbitration panel, shall be entitled to
an award against the other party in the amount of the prevailing party's costs
and reasonable attorneys' fees. The arbitration shall be held in San Francisco,
California. A disputed performance or suspended performances pending the
resolution of the arbitration must be completed within thirty days following the
final decision of the arbitrators. Any arbitration subject to this Section 11.12
shall be completed within six months from the filing of notice of a request for
such arbitration.
11.13 Complete Agreement. It is understood and agreed between ABX and CGI
that this Agreement constitutes the entire agreement, both written and oral,
between the parties with respect to the subject matter hereof, and that all
prior agreements respecting the subject matter hereof, either written or oral,
expressed or implied, shall be abrogated, canceled, and are null and void and of
no effect. No amendment or change hereof or addition hereto shall be effective
or
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<PAGE> 50
binding on either of the parties hereto unless reduced to writing and executed
by the respective duly authorized representatives of ABX and CGI.
11.14 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and both together shall be deemed to be
one and the same agreement.
11.15 Headings. The captions to the several Articles and Sections hereof
are not a part of this Agreement, but are included merely for convenience of
reference only and shall not affect its meaning or interpretation.
11.16 Nondisclosure. Except as provided in Article 7, each of the parties
hereto agrees not to disclose to any third party the terms of this Agreement
without the prior written consent of each other party hereto, except to
advisors, investors, licensees, sublicensees and others on a need to know basis
under circumstances that reasonably ensure the confidentiality thereof, or to
the extent required by law. Without limitation upon any provision of this
Agreement, each of the parties hereto shall be responsible for the observance by
its employees, consultants and contractors of the foregoing confidentiality
obligations.
11.17 Indemnification. The indemnification obligations of the parties
hereunder shall be as set forth in the Gene Therapy Rights Agreement.
11.18 Conformity with GenPharm Cross-License. The rights and licenses
granted to CGI hereunder shall be subject to that certain Cross License
Agreement entered into by the parties and GenPharm International, Inc.,
effective as of March 26, 1997 (the "Cross License"), and to the extent that
this Agreement purports to grant greater rights to CGI than is permitted under
the Cross License, such rights shall be granted only to the extent permitted
under the Cross License, and the terms of the Cross License shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement, through their
respective officers hereunto duly authorized, as of the day and year first above
written.
ABGENIX, INC. CELL GENESYS, INC.
By: By:
----------------------------------- -------------------------------------
Name: Name:
--------------------------------- -----------------------------------
Title: Title:
-------------------------------- ----------------------------------
* -- use if Product License is Exclusive Worldwide Product License
* -- use if Product License is Exclusive Qualified Worldwide Product License
*** -- use if Product License is Exclusive Home Territory Product License
**** -- use if Product License is Co-Exclusive Worldwide Product License
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<PAGE> 51
ATTACHMENT A
SUBORDINATION STATEMENT
[To Abgenix]
This notice is sent to Abgenix pursuant to Section 2.4(b) of the CGI
Product Sublicense with respect to _____________________ (the "Sublicense
Antigen") between Abgenix and Cell Genesys. The undersigned party (the
"Subordinating Third Party") agrees that the sublicense granted to the
Subordinating Third Party under its Direct Third Party Sublicense with Abgenix
with respect to the Sublicense Antigen shall be subordinate in all respects to
any Direct Third Party Sublicense with respect to the Sublicense Antigen entered
into between Abgenix and ________________________ (the "Subsequent Direct Third
Party Sublicensee") in accordance with Section 2.4 of the CGI Product Sublicense
for the Sublicense Antigen (i.e., the sublicense granted to the Subordinating
Third Party under its Direct Third Party Sublicense with Abgenix related to the
Sublicense Antigen shall be of no force or effect to the extent that the
GenPharm Cross license does not permit both that sublicense and the Direct Third
Party Sublicense to the Subsequent Direct Third Party Licensee related to the
Sublicense Antigen).
- --------------------------------------
(the Subordinating Third Party)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
--------------------------------
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<PAGE> 52
ATTACHMENT B
PAYMENTS DUE TO THIRD PARTIES
[TO BE COMPLETED AT TIME OF EXECUTION]
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<PAGE> 53
ATTACHMENT C
NOTICE OF PARTIAL TERMINATION OF DIRECT SUBLICENSE
[To Xenotech]
This notice is sent to Xenotech pursuant to Section 9.3 of the Direct
Sublicense of GenPharm Rights entered into by and between Cell Genesys and
Xenotech effective as of November __, 1997.
Cell Genesys hereby terminates, effective as of __________________, its
rights under the Direct Sublicense of GenPharm Rights in the countries indicated
below with respect to the CGI Product Antigen indicated below.
CGI Product Antigen:_________________________________.
Countries: __________________________________.
Cell Genesys, Inc.
By:
-----------------------------------
Name:
Title:
Date:
cc: [Abgenix]
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<PAGE> 54
ATTACHMENT D
ABX-CONTROLLED RIGHTS
[TO BE COMPLETED AT TIME OF EXECUTION.]
[Note when completing: This Exhibit D will reflect the ABX-Controlled Rights as
of the effective date of each CGI Product Sublicense, and will include the
rights indicated in Exhibit D of the Gene Therapy Rights Agreement, taking into
account the changes, if any, in the ABX-Controlled Rights between the effective
date of the Gene Therapy Rights Agreement and the effective date of the CGI
Product Sublicense.]
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<PAGE> 55
EXHIBIT C
[SAME AS EXHIBIT G TO EXHIBIT 10.13]
<PAGE> 56
EXHIBIT D
Abgenix Controlled Rights
Patents and technology that are licensed to ABX pursuant to:
A. Master Research License and Option Agreement by and among Xenotech L.P.,
Japan Tobacco Inc. and Cell Genesys, Inc. dated June 28, 1996, as amended,
which includes:
1. Field License by and among Xenotech L.P., J.T. Immunotech USA Inc.
and Cell Genesys, Inc. dated June 13, 1991, as amended;
[***]
[***] Cross License Agreement by and among Cell Genesys, Inc., Abgenix,
Inc., Xenotech L.P., Japan Tobacco Inc. and GenPharm
International, Inc. dated March 26, 1997 (including the Exclusive
License Agreement by and between GenPharm International, Inc. and
the University of Utah Research Foundation dated June 15, 1989);
and
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 57
EXHIBIT E
EXERCISE NOTICE
[DATE]
[To Abgenix:]
Pursuant to Section 2.2 of the Gene Therapy Rights Agreement, Cell Genesys,
Inc. ("CGI") exercises its option for the Six-Month Period beginning on [January
1,_________] [July 1, _________] and requests that Abgenix, Inc. ("ABX") select
an Antigen on behalf of CGI.
ANTIGEN TO BE SELECTED:
(Attach additional pages if necessary.)
SCIENTIFIC BACKGROUND:
(Attach additional pages if necessary.)
By:
----------------------------------
Print Name:
-------------------------
_____MARK HERE if CGI desires ABX to select this Antigen pursuant to Section 7.1
of the 1996 Master Research License and Option Agreement, and ATTACH ADDITIONAL
INFORMATION to support selection of this Antigen under Section 7.1.
<PAGE> 1
EXHIBIT 10.22
THIS LICENSE AGREEMENT (the "Agreement") effective the 1st day of February,
1997 (the "Effective Date"), is made by and between RONALD J. BILLING,
Ph.D., an individual residing at 682 Ora Avo Drive, Vista, CA 92084 ("Licensor")
and ABGENIX, INC., a California corporation doing business at 7601 Dumbarton
Circle, Fremont, CA 94555 ("Licensee").
RECITALS
WHEREAS, Licensor has entered into a Research Evaluation and Option
Agreement with Cell Genesys, Inc. dated June 10, 1996 (the "Research Evaluation
and Option Agreement");
WHEREAS, Cell Genesys, Inc. has assigned the Research Evaluation and
Option Agreement to Licensee, a subsidiary of Cell Genesys, Inc.; and
WHEREAS, Licensor desires to grant to Licensee and Licensee desires to
acquire from Licensor an exclusive worldwide license under the Patent Rights to
commercialize CBL-1 antibody products, on the terms and conditions herein;
NOW, THEREFORE, for and in consideration of the covenants, conditions, and
undertakings, hereinafter set forth, it is agreed by and between the parties as
follows:
1. DEFINITIONS
For purposes of this Agreement, the terms set forth in this Article shall
have the meanings set forth below.
1.1 "Affiliate" shall mean any entity which controls, is controlled by or
is under common control with Licensee. An entity shall be regarded as in control
of another entity if it owns or controls at least fifty percent (50%) of the
shares of the subject entity entitled to vote in the election of directors, or,
in the case of an entity that is not a corporation, for the election of the
corresponding managing authority.
1.2 "Annual License Maintenance Fee" shall have the meaning set forth in
Article 3 hereof.
1.3 "Initial License Fee" shall have the meaning set forth in Article 3
hereof.
1.4 "Intellectual Property" shall have the meaning set forth in Section
9.5.
1.5 "Licensed Field" shall mean all human medical uses.
1.6 "Materials" shall mean samples of (i) the original hybridoma cells
deposited with the ATCC and having the accession number HB8214 and (ii)
samples of murine CBL-1 ascites produced by Licensor.
<PAGE> 2
1.7 "NET SALES" shall mean the gross sales price charged by Licensee or
its Affiliates and Sublicensees for sales of Product to non-Affiliate customers,
[***] with respect to such sales.
1.8 "PATENT RIGHTS" shall mean (i) United States Patent Number 5,330,896
and its priority US applications; (ii) any continuations,
continuations-in-part, divisionals, reexamination certificates, reissues or
extensions of (i) above; (iii) any foreign counterparts of any of (i) or (ii)
above including but not limited to: (a) European Patent Number EP0311438B1 and
(b) Japanese Patent Registration Number 1864269.
1.9 "PRODUCT" shall mean the CBL-1 antibody, together with any analogues,
derivations, modifications, humanized or human versions, or parts thereof, each
to the extent that making, using or selling the above would infringe the Patent
Rights.
1.10 "SUBLICENSEE" shall mean a third party that is not an Affiliate to
whom Licensee has granted a sublicense under the Patent Rights and Materials to
make, use and/or sell Product to the extent of the rights of Licensee therein.
"Sublicensee" shall also include a third party to whom License has granted the
right to distribute Product under the Patent Rights to the extent of the rights
of Licensee therein, provided that such third party is responsible for the
marketing and promotion of Product within the applicable country.
1.11 "TERRITORY" shall mean all the countries of the world.
2. LICENSE GRANT
Subject to the terms and conditions of this Agreement, Licensor
hereby grants to Licensee an exclusive license, under the Patent Rights and
Materials, to make, have made, use and sell Product in the Field in the
Territory. Such license shall be exclusive even as to Licensor, and shall
include the exclusive right to grant and authorize sublicenses for exploitation
worldwide.
3. LICENSE FEES
Licensee shall pay to Licensor an initial license fee of Fifty Thousand
Dollars ($50,000) (the "Initial License Fee") within 30 days of the Effective
Date. In addition, Licensee shall pay to Licensor an annual license maintenance
fee of Fifty Thousand Dollars ($50,000) (the "Annual License Maintenance Fee")
on each anniversary of the Effective Date.
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 3
4. ROYALTIES; THIRD-PARTY ROYALTIES
4.1 ROYALTY RATES. In consideration for the license and rights granted
herein, Licensee agrees to pay to Licensor royalties of [***] of Product by it
and its Affiliates and, subject to Section 11, their Sublicensees; provided,
however, that beginning with the first calendar quarter following
commercialization of Product, Licensee shall in no event pay Licensor annual
royalties of [***].
4.2 SINGLE ROYALTY; NON-ROYALTY SALES. Only one royalty shall be payable
with respect to any Product, regardless of how many claims or patents within
the Patent Rights cover such Product. In addition, no royalty shall be payable
under this Article 4 with respect to sales of Product among Licensee and its
Affiliates and/or Sublicensees or for use in research and/or development or
clinical trials.
4.3 TERMINATION OF ROYALTIES. Royalties under Section 4.1 will be due
until the later of (i) ten years from the first commercial sale of Product in
any country or (ii) on a country-by-country basis, the expiration of the
last-to-expire patent within the Patent Rights covering the Product in such
country.
4.4 THIRD-PARTY ROYALTIES. Licensee will be responsible for the payment
of any royalties, license fees and milestone and other payments due to third
parties under licenses or similar agreements entered into by Licensee to all
the manufacture, use or sale of Product.
5. MILESTONE PAYMENT
Licensee shall issue to Licensor 25,000 shares of common stock of Licensee
upon the submission of a Product License Application ("PLA") for the first
indication of Product.
6. ACCOUNTING AND RECORDS
6.1 ROYALTY REPORTS AND PAYMENTS. After the first commercial sale of
Product on which royalties are required, Licensee agrees to make quarterly
written reports to Licensor within 60 days after the end of each calendar
quarter, stating in each such report the number, description, and aggregate Net
Sales of Product sold during the calendar quarter upon which a royalty is
payable under Article 4 above. Concurrently with the making of such reports,
Licensee shall pay to Licensor royalties at the applicable rate specified in
Section 4.1 above. All payments to Licensor hereunder shall be made in U.S.
Dollars to a bank account designated by Licensor.
6.2 RECORDS, INSPECTION. Licensee shall keep complete, true and accurate
books of account and records for the purpose of determining the royalty amounts
payable to Licensor under this
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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<PAGE> 4
Agreement. Such books and records shall be kept for at least three years
following the end of the calendar quarter to which they pertain. Licensee
shall require each of its Sublicensees to maintain similar books and records.
6.3 Currency Conversion. If any currency conversion shall be required in
connection with the calculation of royalties hereunder, such conversion shall be
made using the selling exchange rate for conversion of the foreign currency
into U.S. Dollars, quoted for current transactions reported in The Wall Street
Journal for the last business day of the calendar quarter to which such payment
pertains.
6.4 Late Payments. Any payments due from Licensee that are not paid on
the date such payments are due under this Agreement shall bear interest to the
extent permitted by applicable law at the prime rate as reported by the Bank of
America in San Francisco, California on the date such payment is due, plus an
additional two percent, calculated on the number of days such payment is
delinquent. This Section 6.4 shall in no way limit any other remedies available
to any party.
7. MATERIALS; CONSULTING
7.1 Materials. Licensee acknowledges that Licensor has already provided
to Licensee samples of the Materials. Title to the Materials shall remain with
Licensor. Upon any termination of the Agreement pursuant to Section 14.3,
Licensee shall return Materials to Licensor.
7.2 Consulting. Licensor shall provide services as a consultant to
Licensee with respect to Product from time to time as reasonably requested by
Licensee until the commercialization of Product for the first indication, such
services not to exceed more than one day per calendar month. Licensor hereby
covenants and agrees that, during such time as he is providing consulting
services to Licensee pursuant to this Section 7.2, Licensor shall not perform
consulting services to any third party with respect to Product, without the
Licensee's prior written consent. In consideration for the services to be
provided pursuant to this Section 7.2, Licensee shall grant Licensor an option
to purchase 10,000 shares of common stock of Licensee under the Abgenix, Inc.
1996 Incentive Stock Plan.
7.3 Research and Development Funding. Licensee shall provide research and
development funding to the CV Cancer Center until the commercialization of
Product for the first indication as follows: Twenty-Five Thousand Dollars
($25,000) shall be paid to the CV Center within 30 days of the Effective Date
and Five Thousand Dollars ($5,000) per month shall be paid to CV Cancer Center
quarterly in advance. The monthly research and development payments shall be
subject to adjustment annually by a percentage equal to the percentage increase
in the U.S. Consumer Price Index as published by the U.S. Bureau of Labor
Statistics.
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<PAGE> 5
8. DEVELOPMENT OF PRODUCT, DUE DILIGENCE
8.1 Funding and Conduct. Licensee shall independently furnish and be
responsible for funding and conducting all of its preclinical and clinical
research and development of Product, at its own expense.
8.2 IND Filing. Licensor shall allow Licensee to access Licensor's IND
relating to murine CBL-1 by providing Licensee with a letter of access to such
IND, at the request and at the discretion of Licensee. Licensor shall execute
and deliver such other documents as may be reasonably requested by Licensee to
access such IND.
8.3 Due Diligence. Licensee agrees to use commercially reasonable efforts
consistent with prudent business judgment to commercialize Product. Licensee
agrees to commit not less than One Million Dollars ($1,000,000) per year to the
development of Product until Product obtains regulatory approval in any one
country of the world. Licensee shall keep Licensor reasonably informed as to the
status of such commercialization efforts.
9. PATENTS, INTELLECTUAL PROPERTY
9.1 Patent Prosecution. Licensee shall have responsibility for preparing,
filing, prosecuting and maintaining patents and patent applications worldwide
relating to the Patent Rights and conducting any interferences, reexaminations,
or requesting reissues or patent term extensions with respect to the Patent
Rights. Licensee shall keep Licensor reasonably informed as to the status of
such patent matters and shall provide Licensor copies of any documents received
by Licensee from such patent offices including notice of all interferences,
reexaminations, oppositions or requests for patent term extensions. Licensor
shall cooperate with and assist Licensee in connection with such activities, at
Licensee's request and expense.
9.2 Patent Enforcement. In the event that any Patent Rights necessary for
the practice of the license granted herein are infringed or misappropriated by
a third party or are subject to a declaratory judgment action arising from
such infringement. Licensee shall have the exclusive right to enforce or defend
any declaratory judgment action, at its expense, involving any Patent Rights.
In such event, Licensee shall keep Licensor reasonably informed of the progress
of any such claim, suit or proceeding. Any recovery received by Licensee as a
result of any such claim, suit or proceeding shall be retained by Licensee.
9.3 Infringement Claims. If the production, sale or use of Product
pursuant to this Agreement results in any claim, suit or proceeding alleging
patent infringement against Licensee, Licensee shall have the exclusive right
to defend and control the
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 6
defense of any such claim, suit or proceeding, at its own expense, using counsel
of its choice. Licensee shall keep Licensor reasonably informed of all material
developments in connection with any such claim, suit or proceeding as it relates
to the Patent Rights. Subject to the limitation set forth below, the costs of
any damages and expenses (including attorneys' and professional fees) shall be
divided [***]. Licensee shall deduct Licensor's share of such costs from any
amounts due, or which may become due, to Licensor pursuant to this Agreement;
provided, however, that in no event shall such deductions [***] of any such
amounts and Licensor shall not be liable for any costs in excess of such
deductible amounts.
9.4 Patent Marking. Licensee agrees to mark and have its Affiliates and
Sublicensees mark all Products sold pursuant to this Agreement in accordance
with the applicable statute or regulations in the country or countries of
manufacture and sale thereof.
9.5 Intellectual Property Rights. Licensee may disclose to Licensor
inventions, technology, improvements, discoveries, developments, original works
of authorship, trade secrets or intellectual property, conceived, developed or
reduced to practice by employee of Licensee ("Intellectual Property").
Intellectual Property shall be treated as confidential information subject to
the provisions of Article 10. Title to any Intellectual Property, including
patent applications, divisionals, continuations, continuations-in-part, patents
or reissues and re-examinations thereon shall be owned by Licensee.
10. CONFIDENTIALITY
10.1 Confidential Information. Except as expressly provided herein, the
parties agree that, for the term of this Agreement and for five years
thereafter, the receiving party shall keep completely confidential and shall
not publish or otherwise disclose and shall not use for any purpose any
information furnished to it by another party hereto pursuant to this Agreement
except to the extent that it can be established by the receiving party by
competent proof that such information:
(a) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving party;
(c) 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; or
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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<PAGE> 7
(d) was subsequently lawfully disclosed to the receiving party by a
person other than a party or developed by the receiving party without reference
to any information or materials disclosed by the disclosing party.
10.2 Permitted Disclosures. Notwithstanding Sections 10.1 above and 15.16
below, Licensee may disclose Licensor's information to the extent such
disclosure is reasonably necessary in filing or prosecuting patent
applications, prosecuting or defending litigation, complying with applicable
governmental regulations or otherwise submitting information to tax or other
governmental authorities, making a permitted sublicense or other exercise of
its rights hereunder or conducting clinical trials.
11. SUBLICENSES
Pursuant to Article 2 herein, Licensee shall have the right to grant and
authorize sublicenses to third parties; provided, however, the Licensee shall
remain responsible for any payments due Licensor for Net Sales of Product by any
Sublicensee. In the event that Licensee receives a license fee from a
Sublicensee at any time within [***] provided, however, that to the extent that
such fee is creditable against future royalties on Net Sales of Product by the
Sublicensee, Licensee shall not be required to pay Licensor royalties on such
Net Sales of Product pursuant to Section 4.1 Except as set forth in this Section
11, Licensee may retain any amounts received from Sublicensees in excess of the
amounts owed to Licensor pursuant to Article 4. Any sublicense granted by
Licensee pursuant to this Agreement shall provide that the Sublicensee will be
subject to the applicable terms of this Agreement.
12. INDEMNIFICATION
Licensee agrees to indemnify and hold Licensor harmless from and against
any losses, claims, damages, liabilities or actions suffered or incurred in
connection with third party claims arising from any Product manufactured, used,
sold or otherwise distributed by Licensee and its Affiliates or Sublicensees;
provided, however, that Licensee shall not be required to provide
indemnification to Licensor for any losses, claims, damages, liabilities or
actions suffered or incurred in connection with third party claims resulting
from the gross negligence, recklessness or intentional misconduct by Licensor
or its agents. If Licensor intends to claim indemnification under this Article
12, it shall promptly notify Licensee in writing of any loss, claim, damage,
liability or action in respect of which Licensor intends to clam such
indemnification, and Licensee shall have the right to participate in or to
assume the defense thereof with counsel of its choice; provided, however, that
Licensor shall have the right to retain its own counsel, at its own expense.
This indemnity agreement shall not apply to amounts
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
-7-
<PAGE> 8
paid in settlement of any losses, claims, damages, liabilities or actions if
such settlement is effected without the consent of Licensee. The failure to
deliver written notice to Licensee within a reasonable time after the
commencement of any such action, if prejudicial to its ability to defend such
action shall relieve Licensee of any Liability that it may have to Licensor
under this Article 12. Licensor shall cooperate fully with Licensee and its
legal representatives in the investigation of any action, claim or liability
covered by this indemnification.
13. REPRESENTATIONS AND WARRANTIES
13.1 Licensor. Licensor represents and warrants that:
(i) it has the full right and authority to enter into this Agreement
and grant the rights and licenses granted herein;
(ii) it has not previously granted and will not grant any rights
inconsistent or in conflict with the rights and licenses granted to Licensee
herein;
(iii) there are no existing or threatened actions, suits or claims
pending against Licensor with respect to the Patent Rights or Materials or the
right of Licensor to enter into and perform its obligations under this
Agreement;
(iv) it has not previously granted, and will not grant during the
term of this Agreement, any right, license or interest in and to the Patent
Rights or Materials, or any portion thereof, with respect to the Product, or its
manufacture or use.
13.2 Licensee: Licensee represents and warrants that:
(i) it has the full right and authority to enter into this
Agreement; and
(ii) it has not entered and during the term of this Agreement will
not enter any other agreement inconsistent or in conflict with this Agreement.
13.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
LICENSOR MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND VALIDITY OF PATENT RIGHTS
CLAIMS, ISSUED OR PENDING.
14. TERM AND TERMINATION
14.1 Effectiveness. This Agreement shall become effective as of the
Effective Date and the license rights granted by Licensor under Article 2 above
shall be in full force and effect as of such date.
-8-
<PAGE> 9
14.2 Term. Unless earlier terminated pursuant to the other provisions of
this Article 14, this Agreement shall continue in full force and effect until
the expiration of the last to expire patent within the Patent Rights claiming
Product. The licenses granted under Article 2 shall survive the expiration (but
not an earlier termination) of this Agreement; provided that such license shall
in such event become nonexclusive.
14.3 Termination for Breach. Either party to this Agreement may terminate
this Agreement in the event the other party shall have materially breached or
defaulted in the performance of any of its material obligations hereunder, and
such shall have continued for sixty days after written notice thereof was
provided to the breaching party by the nonbreaching party that terminates the
Agreement as to such party. Any termination shall become effective at the end of
such sixty day period unless the breaching party has cured any such breach or
default prior to the expiration of the sixty day period. However, if the party
alleged to be in breach of this Agreement disputes such breach within such sixty
day period, the non-breaching party shall not have the right to terminate this
Agreement unless it has been determined by an arbitration proceeding in
accordance with Section 15.12 below that this Agreement was materially breached,
and the breaching party fails to cure such breach within 30 days following the
final decision of the arbitrators or such other time as directed by the
arbitrators.
14.4 Other Termination Rights. Licensee may terminate this Agreement and
the license granted herein, in its entirety or as to any particular patent
within the Patent Rights in a particular country, at any time, by providing
Licensor ninety-days written notice. In the event of termination as to a
particular country, the subject patent in such country shall cease to be within
the Patent Rights for all purposes of this Agreement.
14.5 Effect of Termination.
14.5.1 Termination of this Agreement for any reason shall not release
either party hereto from any liability which at the time of such termination has
already accrued to the other party or which is attributable to a period prior to
such termination.
14.5.2 In the event this Agreement is terminated for any reason,
Licensee and its Affiliates and Sublicensees shall have the right to sell or
otherwise dispose of the stock of any Product subject to this Agreement then on
hand. Upon termination of this Agreement by Licensor for any reason, any
sublicense granted by Licensee hereunder shall survive, provided that upon
request by Licensor, such Sublicensee promptly agrees in writing to be bound by
the applicable terms of this Agreement.
14.5.3 Section 9.5 and Articles 10, 12, 13, 14, and 15 shall survive
the expiration and any termination of this Agreement for any reason.
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<PAGE> 10
15. MISCELLANEOUS
15.1 Governing Laws. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, without regard to conflicts
of law principles.
15.2 Waiver. It is agreed that no waiver by any party hereto of any
breach or default of any of the covenants or agreements herein set forth shall
be deemed a waiver as to any subsequent and/or similar breach or default.
15.3 Assignment. This Agreement and the license granted hereunder may not
be assigned by Licensee to any third party without the written consent of
Licensor, and Licensor may not assign this Agreement to a third party without
the consent of Licensee; except Licensee may assign this Agreement without such
consent to (a) an Affiliate or (b) an entity that acquires substantially all of
the stock or assets of the Licensee's business to which this Agreement relates.
The terms and conditions of this Agreement shall be binding on and inure to the
benefit of such permitted successors and assigns.
15.4 Independent Contractors. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be
employees, agents, partners or joint venturers of the others for any purpose as
a result of this Agreement or the transactions contemplated thereby.
15.5 Compliance with Laws. In exercising their rights under this license,
the parties shall fully comply with the requirements of any and all applicable
laws, regulations, rules and orders of any governmental body having jurisdiction
over the exercise of rights under this license.
15.6 No Implied Obligations. Nothing in this Agreement shall be deemed to
require Licensee to exploit the Patent Rights nor to prevent Licensee from
commercializing products similar to or competitive with any Product, in addition
to or in lieu of such Product.
15.7 Notices. Any notice required or permitted to be given to the parties
hereto shall be given in writing and shall be deemed to have been properly given
if delivered in person or when received if mailed by first class certified mail
to the other party at the appropriate address as set forth below or to such
other addresses as may be designated in writing by the parties from time to time
during the term of this Agreement.
Licensor: Ronald J. Billing, Ph.D.
682 Ora Avo Drive
Vista, CA 92084
<PAGE> 11
Licensee: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, CA 94555
Attn: President
15.8 Export Laws. Notwithstanding anything to the contrary contained
herein, all obligations of Licensor and Licensee are subject to prior
compliance with United States export regulations and such other United States
laws and regulations as may be applicable, and to obtaining all necessary
approvals required by the applicable agencies of the government of the United
States. Licensee shall use efforts consistent with prudent business judgment to
obtain such approvals. Licensor shall cooperate with Licensee and shall provide
assistance to Licensee as reasonably necessary to obtain any required approvals.
15.9 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision and the parties shall discuss in good faith appropriate
revised arrangements.
15.10 Force Majeure. Nonperformance of any party (except for payment
obligations) shall be executed to the extent that performance is rendered
impossible by strike, fire, earthquake, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure to
perform, is beyond the reasonable control and not caused by the negligence,
intentional conduct or misconduct of the nonperforming party.
15.11 No Consequential Damages. IN NO EVENT SHALL ANY PARTY HERETO BE
LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS
AGREEMENT OR THE EXERCISE OF RIGHTS HEREUNDER.
15.12 Dispute Resolution; Arbitration. The parties will attempt to
resolve any dispute under this Agreement by mutual agreement, and, if required,
there shall be a face-to-face meeting between a senior executive of Licensee
and the Licensor. Any dispute under this Agreement which is not settled after
such meeting, shall be finally settled by binding arbitration, conducted in
accordance with the Rules of Arbitration of the American Arbitration
Association by three arbitrators appointed in accordance with said rules. The
costs of the arbitration, including administrative and arbitrators' fees, shall
be shared equally by the parties. Otherwise, except as set forth in the next
sentence, each party shall bear its own costs and attorneys' and witness' fees.
The prevailing party in any arbitration, as determined by the arbitration
panel, shall be entitled to an award against the other party in the amount of
the prevailing party's costs and reasonable attorneys' fees. The arbitration
shall be held in San Francisco, California. A disputed performance or suspended
performance pending the resolution of the arbitration must be completed within
thirty days following
-11-
<PAGE> 12
the final decision of the arbitrators. Any arbitration shall be completed
within six months from the filing of notice of a request for such arbitration.
15.13 COMPLETE AGREEMENT. It is understood and agreed between
Licensor and Licensee that this Agreement, together with the Research
Evaluation and Option Agreement, constitute the entire agreement, both written
and oral, between the parties with respect to the subject matter hereof, and
that all prior agreements respecting the subject matter hereof, either written
or oral, expressed or implied, shall be abrogated, canceled, and are null and
void and of no effect. No amendment or change hereof or addition hereto shall
be effective or binding on either of the parties hereto unless reduced to
writing and executed by the respective duly authorized representatives of
Licensor and Licensee.
15.14 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and both together shall be
deemed to be one and the same agreement.
15.15 HEADINGS. The captions to the several Articles and Sections
hereof are not a part of this Agreement, but are included merely for
convenience of reference only and shall not affect its meaning or
interpretation.
15.16 NONDISCLOSURE. Except as provided in Article 10, each of the
parties hereto agrees not to disclose to any third party the terms of this
Agreement without the prior written consent of each other party hereto, except
to advisors, investors, potential investors, sublicensees, potential
sublicensees and others on a need to know basis, or to the extent required by
law.
15.17 ATTORNEY. Licensor and Licensee hereby acknowledge that each
has had the opportunity to consult with an attorney of their choice and that
each has entered into this Agreement upon their own free will and with due
consideration for all the terms and provisions herein.
-12-
<PAGE> 13
IN WITNESS WHEREOF, the parties have executed this Agreement, their
respective officers hereunto duly authorized, as of the day and year first
above written.
RONALD J. BILLING ABEGNIX, INC.
(Licensor) (Licensee)
[SIG] /s/ R. SCOTT GREER
- ----------------------------------- -----------------------------------
Social Security Number R. Scott Greer
###-##-#### President and Chief Executive
Officer
AGREED TO:
ANGELA BILLING
[SIG]
- -----------------------------------
Social Security Number
###-##-####
<PAGE> 1
EXHIBIT 10.27
PFIZER, INC.
COLLABORATIVE RESEARCH
AGREEMENT
<PAGE> 2
COLLABORATIVE RESEARCH AGREEMENT
This COLLABORATIVE RESEARCH AGREEMENT ("Agreement") is entered into as of
December 22, 1997 by and between PFIZER INC ("Pfizer"), a Delaware corporation,
having an office at 235 East 42nd Street, New York, New York 10017 and its
Affiliates, and ABGENIX, INC. ("Abgenix"), a Delaware corporation, having an
office at 7601 Dumbarton Circle, Fremont, CA 94555;
WHEREAS, Abgenix has expertise in the generation of human monoclonal antibodies
through utilization of transgenic Xenomouse(TM) animals; and
WHEREAS, Abgenix is licensed under the patents and patent applications set forth
in Exhibit A attached to and made part of this Agreement with respect to the
transgenic Xenomouse(TM) animals; and
WHEREAS, Pfizer has the capability to undertake research for the discovery and
evaluation of agents for treatment of disease and also the capability for
clinical analysis, manufacturing and marketing with respect to therapeutic
agents;
WHEREAS, Pfizer and Abgenix enter into this Agreement to discover and develop
patentable therapeutic antibody agents;
NOW, THEREFORE, the parties agree as follows:
1. Definitions
Whenever used in this Agreement, the terms defined in this Section 1 shall have
the meanings specified.
<PAGE> 3
1.1 "Affiliate" means any corporation or other legal entity owning,
directly or indirectly, fifty percent (50%) or more of the voting capital shares
or similar voting securities of Pfizer or Abgenix; any corporation or other
legal entity fifty percent (50%) or more of the voting capital shares or similar
voting rights of which is owned, directly or indirectly, by Pfizer or Abgenix or
any corporation or other legal entity fifty percent (50%) or more of the voting
capital shares or similar voting rights of which is owned, directly or
indirectly, by a corporation or other legal entity which owns, directly or
indirectly, fifty percent (50%) or more of the voting capital shares or similar
voting securities of Pfizer or Abgenix.
1.2 "Research Plan" means the written plan describing the research and
development in the Area to be carried out by Pfizer and Abgenix pursuant to this
Agreement. The Research Plan is attached to and made a part of this Agreement as
Exhibit B.
1.3 "Research Program" is the collaborative research program in the Area
conducted by Pfizer and Abgenix pursuant to the Research Plan.
1.4 "Effective Date" is December 22, 1997.
1.5 "Contract Period" means the period beginning on the Effective Date
and ending on the date on which this Agreement terminates.
1.6 "Area" means research or development with respect to the discovery
and development of therapeutic Antibody Products directed against a Target
Antigen useful in the treatment or prevention of human disease.
1.7 "Technology" means and includes all materials, technology, technical
information, know-how, expertise and trade secrets within the Area.
1.8 "Abgenix Technology" means Technology that is or was:
(a) developed by employees of or consultants to Abgenix alone or
jointly with third parties prior to the Effective Date; or
2
<PAGE> 4
(b) acquired by purchase, license, assignment or other means from
third parties by Abgenix prior to the Effective Date or since that date that is
not part of Joint Technology.
1.9 "Joint Technology" means Technology that is or was:
(a) developed by employees of or consultants to Pfizer or Abgenix
solely or jointly with each other in the course of performing the Research
Program including (i) Antibody Products, (ii) cells that express or secrete
Antibody Products and (iii) materials derived from Antibody Products or cells
that express or secrete Antibody Products; provided, however that XenoMouse(TM)
animals immunized in the course of conducting the Research Program shall remain
Abgenix Technology; or
(b) acquired by purchase, license, assignment or other means from
third parties by Abgenix or Pfizer, pursuant to Article 7, in the course of
performing the Research Program.
1.10 "Pfizer Technology" means Technology that is or was:
(a) developed by employees of or consultants to Pfizer alone or
jointly with third parties prior to the Effective Date; or
(b) acquired by purchase, license, assignment or to other means from
third parties by Pfizer prior to the Effective Date or since that date that is
not of Joint Technology.
1.11 "Abgenix Confidential Information" means all information about any
element of the Abgenix or Joint Technology which is disclosed by Abgenix to
Pfizer and designated "Confidential" in writing by Abgenix at the time of
disclosure or within thirty (30) days following disclosure, to the extent that
such information as of the date of disclosure to Pfizer is not (i) known to
Pfizer other than by virtue of a prior confidential disclosure to Pfizer by
Abgenix; or (ii) disclosed in published literature, or otherwise generally known
to the public
3
<PAGE> 5
through no fault or omission of Pfizer; or (iii) obtained from a third party
free from any obligation of confidentiality to Abgenix.
1.12 "Pfizer Confidential Information" means all information about any
element of Pfizer or Joint Technology which is disclosed by Pfizer to Abgenix
and designated "Confidential" in writing by Pfizer at the time of disclosure or
within thirty (30) days following disclosure to the extent that such information
as of the date of disclosure to Abgenix is not (i) known to Abgenix other than
by virtue of a prior confidential disclosure to Abgenix by Pfizer; or (ii)
disclosed in published literature, or otherwise generally known to the public
through no fault or omission of Abgenix; or (iii) obtained from a third party
free from any obligation of confidentiality to Pfizer.
1.13 "Valid Claim" means a claim within Patent Rights so long as such
claim shall not have been disclaimed by Pfizer (in the case of Patent Rights
within the Pfizer Technology) or by Abgenix (in the case of Patent Rights within
the Abgenix Technology) or both (in the case of Joint Patent Rights) and shall
not have been held invalid in a final decision rendered by a tribunal of
competent jurisdiction from which no appeal has been or can be taken.
1.14 "Patent Rights" shall mean:
(a) the Abgenix Patent Rights, the Abgenix-Controlled Patent Rights
and the Joint Patent Rights; and
(b) all patent rights in and to inventions within Pfizer Technology
including all the Valid Claims of patent applications, whether domestic or
foreign, claiming such patentable inventions, including all continuations,
continuations-in-part, divisions, and renewals, all letters patent granted
thereon, and all reissues, reexaminations and extensions thereof.
1.15 "Abgenix Patent Rights" shall mean:
4
<PAGE> 6
(a) the Valid Claims of Abgenix's patents and patent applications,
listed in Exhibit Al, and patents issuing on them, including any divisions,
continuation, continuation-in-part, renewal, extension, reexamination, reissue
or foreign counterpart thereof; and
(b) all patent rights in and to inventions within Abgenix Technology
including all the Valid Claims of patent applications, whether domestic or
foreign, claiming such patentable inventions, including all continuations,
continuations-in-part, divisions, and renewals, all letters patent granted
thereon, and all reissues, reexaminations and extensions thereof.
1.16 "Abgenix Controlled Patent Rights" shall mean the Valid Claims of
the licensed patent applications and patents listed on Exhibit A2, including all
continuations, continuations-in-part, divisions, and renewals, all letters
patent granted thereon, and all reissues, reexaminations, extensions and all
foreign counterparts thereof.
1.17 "Joint Patent Rights" shall mean all patent rights in and to
inventions within the Joint Technology, including all the Valid Claims of patent
applications, whether domestic or foreign, claiming such patentable inventions,
including all continuations, continuations-in-part, divisions, and renewals, all
letters patent granted thereon, and all reissues, reexaminations and extensions
thereof.
1.18 "Target Antigen" means the target molecule used as an immunogen for
the discovery of antibodies.
1.19 " Antibody Product" means a whole antibody, or a fragment thereof,
that binds to a particular Target Antigen and is derived from Abgenix Technology
pursuant to the Research Plan.
1.20 "Licensed Antibody Product" shall have the meaning defined in the
License Agreement.
5
<PAGE> 7
1.21 "Materials Transfer Agreement" means that certain Materials
Transfer Agreement entered into by and between Pfizer and Abgenix existing as of
September 25, 1997.
1.22 "License Agreement" means the License and Royalty Agreement
attached hereto as Exhibit C entered into by and between Pfizer and Abgenix as
of the Effective Date.
2. Collaborative Research Program
2.1.1 Purpose. Abgenix and Pfizer shall conduct the Research Program
throughout the Contract Period. All Technology in the Area developed in the
course of performing the Research Plan will become part of the Joint Technology.
The objective of the Research Program is to discover and develop Antibody
Products. The Target Antigen for this Agreement is [*].
2.1.2 Research Plan. The Research Plan is described in the attached
Exhibit B. Each new Research Plan, if any, for each succeeding Target Antigen,
in accordance with Section 9.6, shall be appended to Exhibit B and made part of
this Agreement. Additional research projects, determined to be needed by the
Research Committee will also be appended to Exhibit B and made part of this
Agreement in accordance with Section 2.2 below.
2.1.3 Exclusivity. Abgenix agrees that during the Contract Period,
Abgenix shall not conduct research itself or sponsor any other research, or
engage in any research sponsored by any third party to develop or commercialize
any protein, peptide, or antibodies that bind to the Target Antigen without
Pfizer's consent.
2.2 Research Committee
2.2.1 Purpose. Pfizer and Abgenix shall establish a Research
Committee (the "Research Committee"):
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
6
<PAGE> 8
(a) to review and evaluate progress under the Research Plan;
(b) to prepare the Research Plan, and any amendments thereto, for
any additional projects or Target Antigens; and
(c) to coordinate and monitor publication of research results
obtained from and the exchange of information and materials that relate to the
Research Program. (This function shall survive the termination of this
Agreement).
2.2.2 Membership.. Pfizer and Abgenix each shall appoint, in its sole
discretion, three members to the Research Committee. Substitutes may be
appointed at any time.
The members initially shall be:
Pfizer Appointees: [*]
[*]
[*]
Abgenix Appointees: [*]
[*]
[*]
2.2.3 Chair. The Research Committee shall be chaired by two co-
chairpersons, one appointed by Pfizer and the other appointed by Abgenix.
2.2.4 Meetings. The Research Committee shall meet at least
quarterly, at places selected by each party in turn and on dates mutually agreed
by the parties. The location of the first meeting of the Research Committee
shall be at Pfizer's election. Representatives of Pfizer or Abgenix or both, in
addition to members of the Research Committee, may attend such meetings at the
invitation of either party.
2.2.5 Minutes. The Research Committee shall keep accurate minutes of
its deliberations which record all proposed decisions and all actions
recommended or taken. Drafts of the minutes shall be delivered to all Research
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
7
<PAGE> 9
Committee members within five (5) business days after each meeting. The party
choosing the location for the meeting shall be responsible for the preparation
and circulation of the draft minutes. Draft minutes shall be edited by the
cochairpersons and shall be issued in final form only with their approval and
agreement.
2.2.6 Decisions. All technical decisions of the Research Committee
shall be made by majority of the members, with final authority residing with
Pfizer. Notwithstanding the foregoing or any other provision of this Agreement
(i) Research Plans may only be amended (and Research Plans for additional Target
Antigens adopted) as mutually agreed by Pfizer and Abgenix and approved by the
Research Committee, and (ii) except as Abgenix may otherwise agree, Abgenix
shall only be obligated under this Agreement to perform research activities in
accordance with such a Research Plan.
2.2.7 Expenses. Pfizer shall bear all expenses, including reasonable
travel, related to the participation of the designated members of the Research
Committee.
2.3 Reports and Materials.
2.3.1 Reports. During the Contract Period, Pfizer and Abgenix each
shall furnish to the Research Committee:
(a) summary written reports within fifteen (15) days after the end
of each stage of the Research Plan, commencing on the Effective Date, describing
the progress under the Research Plan; and
(b) comprehensive written reports within thirty (30) days after the
end of each year, describing in detail the work accomplished by it under the
Research Plan during the year and discussing and evaluating the results of such
work.
8
<PAGE> 10
2.3.2 Materials. Abgenix and Pfizer shall, during the Contract
Period, as a matter of course as described in the Research Plan, or upon each
other's written or oral request, furnish to each other samples of biochemical,
biological or synthetic chemical materials which are part of Pfizer Technology,
Abgenix Technology or Joint Technology and which are necessary for each party to
carry out its responsibilities under the Research Plan; provided, however, that
Abgenix shall, upon request, deliver to Pfizer samples of any material made
pursuant to the Research Plan. This will not include the transfer of
Xenomouse(TM) animals by Abgenix. To the extent that Pfizer requests and Abgenix
provides quantities of materials in excess of the quantities required to be
provided under the Research Plan, Pfizer shall reimburse Abgenix for the
reasonable costs of such materials as per Section 3.2.2.
2.3.3 The materials transferred by one party (the "Transferor") to
the other (the "Transferee") shall remain the property of the respective owner
of such materials prior to such transfer, and the transfer of physical
possession of materials to the Transferee, and/or possession or use by the
Transferee, of such materials shall not be, nor be construed as, a sale, lease,
offer to sell or lease, or other transfer of title to such transferred
materials. The Transferee shall retain control over the Transferor's materials
provided to the Transferee hereunder and shall not transfer the Transferor's
materials to any third party without the Transferor's written consent.
2.4 Laboratory Facilities and Personnel. Abgenix shall provide suitable
laboratory facilities, equipment and personnel for the work to be done by
Abgenix in carrying out the Research Program.
2.5 Diligent Efforts. Pfizer and Abgenix each shall use reasonably
diligent efforts to achieve the objectives of the Research Program. Abgenix will
use reasonably diligent efforts to achieve the objectives listed in the Research
Plan
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<PAGE> 11
and Pfizer will use reasonably diligent efforts to assist Abgenix in each
Research Plan.
3. Funding the Research Program.
3.1.1 Pfizer will fund the research to be performed by Abgenix, pursuant
to this Agreement, by making payments to Abgenix within thirty (30) days of the
completion of each event as described in the Research Plan, according to the
following schedule:
<TABLE>
<CAPTION>
EVENT AMOUNT
----- ------
<S> <C>
A. Execution of this Agreement [*]
B. [*]
C. [*] [*]
</TABLE>
3.1.2 [*].
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
10
<PAGE> 12
3.2 Other Payments.
3.2.1 [*], Pfizer shall pay Abgenix the amount of [*].
3.2.2 [*].
3.2.3 [*].
3.3. Each payment pursuant to this Agreement shall be paid by Pfizer in
U.S. currency by wire transfer in immediately available funds to an account
designated by Abgenix, or by other mutually acceptable means within thirty (30)
days after receipt and acceptance by Pfizer of the invoice from Abgenix.
3.4 Abgenix shall keep for three (3) years from the conclusion of each
year complete and accurate records of its expenditures of payments received by
it from Pfizer under Section 3.2.3. The records shall conform to good accounting
principles as applied to a similar company similarly situated. Pfizer shall have
the right at its own expense during the term of this Agreement and during the
subsequent three-year period to appoint an independent certified public
accountant reasonably acceptable to Abgenix to inspect said records to verify
the accuracy of such expenditures, pursuant to each Research Plan. Upon
reasonable notice by Pfizer, Abgenix shall make its records available for
inspection by the independent certified public accountant during regular
business hours at the place
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
11
<PAGE> 13
or places where such records are customarily kept, to verify the accuracy of the
expenditures. This right of inspection shall not be exercised more than once in
any calendar year and not more than once with respect to records covering any
specific period of time. All information concerning such expenditures, and all
information learned in the course of any audit or inspection, shall be deemed to
be Abgenix Confidential Information, except to the extent that it is necessary
for Pfizer to reveal the information in order to enforce any rights it may have
pursuant to this Agreement or if disclosure is required by law. The failure of
Pfizer to request verification of any expenditures before or during the
three-year period shall be considered acceptance by Pfizer of the accuracy of
such expenditures, and Abgenix shall have no obligation to maintain any records
pertaining to such report or statement beyond such three-year period. The
results of such inspection, if any, shall be binding on the parties.
4. Treatment of Confidential Information
4.1 Confidentiality
4.1.1 Pfizer and Abgenix each recognize that the other's
Confidential Information constitutes highly valuable, confidential information.
Subject to the terms and conditions of the License and Royalty Agreement between
the parties of even date with this Agreement (the "License Agreement"), the
obligations set forth in Section 4.3 and the publication rights set forth in
Section 4.2, Pfizer and Abgenix each agree that during the term of this
Agreement and for five (5) years thereafter, it will keep confidential, and will
cause its Affiliates to keep confidential, all Abgenix Confidential Information
or Pfizer Confidential Information, as the case may be, that is disclosed to it,
or to any of its Affiliates pursuant to this Agreement. Neither Pfizer nor
Abgenix nor any of their respective Affiliates shall use such Confidential
Information of the
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other party except as expressly permitted in this Agreement. For the purposes of
this Section 4, it is understood that Joint Technology shall be deemed
Confidential Information of both parties.
4.1.2 Pfizer and Abgenix each agree that any disclosure of the
other's Confidential Information to any officer, employee or agent of the other
party or of any of its Affiliates shall be made only if and to the extent
necessary to carry out its responsibilities under this Agreement and shall be
limited to the maximum extent possible consistent with such responsibilities.
Pfizer and Abgenix each agree not to disclose the other's Confidential
Information to any third parties under any circumstance without written
permission from the other party. Each party shall take such action, and shall
cause its Affiliates to take such action, to preserve the confidentiality of
each other's Confidential Information as it would customarily take to preserve
the confidentiality of its own Confidential Information. Each party, upon the
other's request, will return all the Confidential Information disclosed to it by
the other party pursuant to this Agreement, including all copies and extracts of
documents, within sixty (60) days of the request upon the termination of this
Agreement except for one (1) copy which may be kept for the purpose of complying
with continuing obligations under this Agreement.
4.1.3 Abgenix and Pfizer each represent that all of its employees,
and any consultants to such party, participating in the Research Program who
shall have access to Joint Technology, the Technology of the other (Pfizer
Technology or Abgenix Technology, as the case may be) or Confidential
Information of the other (Pfizer Confidential Information or Abgenix
Confidential Information, as the case may be) are bound by agreement to maintain
such information in confidence.
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4.2 Publication. Notwithstanding any matter set forth with
particularity in this Agreement to the contrary, results obtained in the course
of the Research Program may be submitted for publication following scientific
review by the Research Committee and subsequent approval by Abgenix's and
Pfizer's managements, which approval shall not be unreasonably withheld. After
receipt of the proposed publication by both Pfizer's and Abgenix's managements
written approval or disapproval shall be provided within thirty (30) days for a
manuscript, within fourteen (14) days for an abstract for presentation at, or
inclusion in the proceedings of a scientific meeting, and within fourteen (14)
days for a transcript of an oral presentation to be given at a scientific
meeting.
4.3 Publicity. Except as required by law, neither party may disclose the
terms of this Agreement nor the research described in it without the written
consent of the other party, which consent shall not be unreasonably withheld.
4.4 Permitted Disclosure.
4.4.1 Disclosure Required by Law. If either party is requested to
disclose the Confidential Information in connection with a legal or
administrative proceeding or is otherwise required by law to disclose the
Confidential Information, such party will give the other party prompt notice of
such request. The disclosing party may seek an appropriate protective order or
other remedy or waive compliance with the provisions of this Agreement. If such
party seeks a protective order or other remedy, the other party will cooperate.
If such party fails to obtain a protective order or waive compliance with the
relevant provisions of this Agreement, the other party will disclose only that
portion of Confidential Information which its legal counsel determines it is
required to disclose.
4.4.2 Disclosure of Inventions. Each party shall promptly inform the
other about all inventions in the Area within the Joint Technology that are
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made in the course of carrying out the Research Program by employees of, or
consultants to, either of them solely, or jointly with employees of, or
consultants to the other.
4.5 Restrictions on Transferring Materials. Abgenix recognizes that the
biological and biochemical materials which are part of Pfizer Technology or
Joint Technology, represent valuable commercial assets. Therefore, throughout
the Contract Period and for five (5) years thereafter, Abgenix agrees not to
transfer such materials to any third party, unless prior written, consent for
any such transfer is obtained from Pfizer.
5. Intellectual Property Rights. The following provisions relate to
rights in the intellectual property developed by or for Abgenix or Pfizer, or
both, during the course of carrying out the Research Program.
5.1 Ownership. All Abgenix Confidential Information and Abgenix
Technology shall be owned by Abgenix. All Pfizer Confidential Information and
Pfizer Technology shall be owned by Pfizer. All Joint Technology shall be
jointly owned by Abgenix and Pfizer except for the hybridoma cells generated
during the course of conducting the Research Program ("Hybridoma Technology")
which shall be owned by Abgenix.
5.2 Grants of Research Licenses.
5.2.1 Abgenix and Pfizer each grants to the other a nonexclusive,
irrevocable, worldwide, royalty-free, perpetual license, including the right to
grant sublicenses to Affiliates, to make and use Confidential Information, Joint
Technology and joint Patent Rights for all research purposes other than the sale
or manufacture for sale of products or processes except for the following:
(i) this license does not include the Xenomouse(TM) animals owned by
Abgenix; and
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(ii) neither party can use an Antibody Product derived from the Joint
Technology to identify or model the structure of a Target Antigen or the
structure of the Antibody Product to which the Target Antigen is bound, to
design a molecule of pharmaceutical therapeutic value which is not an antibody.
5.2.2 Abgenix grants to Pfizer a co-exclusive, irrevocable,
worldwide, royalty-free, perpetual license, including the right to grant
sublicenses to Affiliates, to make and use Hybridoma Technology for all research
purposes other than the sale or manufacture for sale of products or processes.
6. Provisions Concerning the Filing, Prosecution and Maintenance of Joint Patent
Rights. The following provisions relate to the filing, prosecution and
maintenance of Joint Patent Rights during the term of this Agreement:
6.1 Filing, Prosecution and Maintenance by Abgenix. With respect to
Joint Patent Rights in which Abgenix employees or consultants, alone or together
with Pfizer employees, or consultants are named as inventors, Abgenix shall have
the exclusive right and obligation :
(a) to file applications for letters patent on patentable inventions
included in Joint Patent Rights; provided, however, that Abgenix shall consult
with Pfizer regarding countries in which such patent applications should be
filed and shall file patent applications in those countries where Pfizer
requests that Abgenix file such applications; and, further provided, that
Abgenix, at its option and expense, may file in countries where Pfizer does not
request that Abgenix file such applications;
(b) to take all reasonable steps to prosecute all pending and new
patent applications included within Joint Patent Rights;
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(c) to respond to oppositions, nullity actions, re-examinations,
revocation actions and similar proceedings filed by third parties against the
grant of letters patent for such applications;
(d) to maintain in force any letters patent included in Joint Patent
Rights by duly filing all necessary papers and paying any fees required by the
patent laws of the particular country in which such letters patent were granted;
and
(e) to cooperate fully with, and take all necessary actions
requested by, Pfizer in connection with the preparation, prosecution and
maintenance of any letters patent included in Joint Patent Rights.
Abgenix shall notify Pfizer in a timely manner of any decision to
abandon a pending patent application or an issued patent included in Joint
Patent Rights. Thereafter, Pfizer shall have the option, at its expense, of
continuing to prosecute any such pending patent application or of keeping the
issued patent in force.
6.1.1 Copies of Documents. Abgenix and Pfizer shall provide to each
other copies of all patent applications that are part of Joint Patent Rights
prior to filing, for the purpose of obtaining substantive comment of the other
party's patent counsel. Abgenix and Pfizer shall also provide to the other
copies of all documents relating to prosecution of all such patent applications
in a timely manner and shall provide to the other every six (6) months a report
detailing the status of all patent applications that are a part of Joint Patent
Rights.
6.1.2 Reimbursement of Costs for Filing Prosecuting and Maintaining
Joint Patent Rights, Within thirty (30) days of receipt of invoices from
Abgenix, Pfizer shall reimburse Abgenix for all the costs of filing,
prosecuting, responding to opposition and maintaining patent applications and
patents in countries where Pfizer requests that patent applications be filed,
prosecuted and maintained. Such reimbursement shall be in addition to other
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funding payments under this Agreement and shall include such costs of all
activities described in 6.1 (a)-(e) above. However, Pfizer may, upon sixty (60)
days notice, request that Abgenix discontinue filing or prosecution of certain
patent applications in any country and discontinue reimbursing Abgenix for the
costs of filing, prosecuting, responding to opposition or maintaining such
patent application or patent in any country. Abgenix shall pay all costs in
those countries in which Pfizer requests that Abgenix not file, prosecute or
maintain patent applications and patents, but in which Abgenix, at its option,
elects to do so.
6.1.3 Pfizer shall have the right to file on behalf of and as an
agent for Abgenix all applications for, and take all actions necessary to obtain
patent extensions pursuant to 35 USC Section 156 and foreign counterparts with
respect to the Joint Patent Rights to the extent that such extensions are
available by reason of a Licensed Antibody Product under the License Agreement
during the period the License Agreement is in effect. Abgenix agrees, to sign,
such further documents and take such further actions as may be requested by
Pfizer in this regard, at Pfizer's expense
6.2 Filing, Prosecution and Maintenance by Pfizer. With respect to
Patent Rights in which Pfizer employees or consultants alone are named as
inventors, Pfizer shall have those rights and duties ascribed to Abgenix in
Section 6.1., except that Pfizer will bear all related expenses.
6.3 Neither party may disclaim a Valid Claim within Joint Patent Rights
without the consent of the other.
7. Acquisition of Rights from Third Parties.
(a) During the Contract Period, Abgenix and Pfizer shall each
promptly notify each other of any and all opportunities to acquire in any manner
from third parties, technology or patents or information which it elects to use
in
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the course of performing the Research Program. Abgenix and Pfizer shall decide
if such rights should be acquired in connection with the Research Program and,
if so, whether by Abgenix, Pfizer or both, it being understood that nothing
herein shall obligate either party to obtain such rights or, if it does acquire
such rights, to make such rights available for use in the Research Program. If
acquired such rights shall become part of the Confidential Information,
Technology or Patent Rights, whichever is appropriate, of the acquiring party or
Joint Technology, as the case may be.
8. Other Agreements. Concurrently with the execution of this Agreement,
Abgenix and Pfizer shall enter into the License Agreement appended to and made
part of this Agreement as Exhibit C and the Stock Purchase Agreement appended to
and made a part of this Agreement as Exhibit D. This Agreement, the Stock
Purchase Agreement and the License Agreement are the sole agreements with
respect to the subject matter and supersede all other agreements and
understandings between the parties with respect to same. The Materials Transfer
Agreement is hereby terminated and superseded by this Agreement, provided,
however, that Abgenix shall not (except as otherwise authorized pursuant to this
Agreement or the License Agreement) disclose or license to any third party
inventions made using the antigen materials provided to Abgenix under the
Materials Transfer Agreement without the prior agreement of Pfizer.
9. Term, Termination and Disengagement.
9.1 Term. Unless sooner terminated, as provided below or extended, by
mutual agreement of the parties, this Agreement shall expire on December 21,
1999.
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9.2 Events of Termination. The following events shall constitute events
of termination ("Events of Termination"):
(a) any written representation or warranty by Abgenix or Pfizer, or
any of its officers, made under or in connection with this Agreement shall prove
to have been incorrect in any material respect when made;
(b) Abgenix or Pfizer shall fail in any material respect to perform
or observe any term, covenant or understanding contained in this Agreement or in
any of the other documents or instruments delivered pursuant to, or concurrently
with, this Agreement, and any such failure shall remain unremedied for thirty
(30) days after written notice to the failing party.
9.3 Termination.
9.3.1 Upon the occurrence of any Event of Termination, the party not
responsible may, by notice to the other party, terminate this Agreement.
9.3.2 If Pfizer terminates this Agreement pursuant to
Section 9.3.1, the License Agreement shall not automatically terminate, but
instead shall terminate or expire in accordance with its terms. If Abgenix
terminates this Agreement pursuant to Section 9.3.1, the License Agreement
shall terminate immediately.
9.4 Termination of this Agreement by either party, with or without
cause, will not terminate the licenses granted pursuant to Section 5.2.
9.5 Termination of this Agreement for any reason shall be without
prejudice to:
(a) the rights and obligations of the parties provided in Sections
2.3.3, 4, 6, 12 and 15;
(b) Abgenix's right to receive all payments accrued under Section 3;
or
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(c) any other remedies which either party may otherwise have.
9.6 Option for Additional Target-Antigens by Pfizer. Pfizer shall have
the option, in its sole, unfettered discretion, to discuss with Abgenix the
research and development of up to two (2) Target Antigens, in addition to [*]
during the term of this Agreement; provided, however, that Abgenix shall not be
obligated to accept any such additional Target Antigen proposed by Pfizer or
grant any rights or obligations with respect to such additional Target Antigens
or antibodies to them. This option shall expire if not exercised by Pfizer on or
before the last day of the twenty fourth month this Agreement is in effect. If
Pfizer exercises this option, by notice to Abgenix, and Abgenix accepts either
of both of the Target Antigens, the parties shall adopt a Research Plan during
the ensuing ninety (90) day period which shall include the funding payments not
to exceed those set forth in Sections 3.1 and 3.2 for the next ensuing two (2)
year period. All other terms and conditions of this Agreement shall otherwise
remain in full force.
10. Representations and Warranties. Abgenix and Pfizer each represents
and warrants as follows:
10.1 It is a corporation duly organized, validly existing and is in good
standing under the laws of the State of Delaware, is qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in which
the conduct of its business or the ownership of its properties requires such
qualification and has all requisite power and authority, corporate or otherwise,
to conduct its business as now being conducted, to own, lease and operate its
properties and to execute, deliver and perform this Agreement.
10.2 The execution, delivery and performance by it of this Agreement
have been duly authorized by all necessary corporate action and do not and will
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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not (a) require any consent or approval of its stockholders, (b) violate any
provision of any law, rule, regulations, order, writ, judgment, injunctions,
decree, determination award presently in effect having applicability to it or
any provision of its certificate of incorporation or by-laws or (c) result in a
breach of or constitute a default under any material agreement, mortgage, lease,
license, permit or other instrument or obligation to which it is a party or by
which it or its properties may be bound or affected.
10.3 This Agreement is a legal, valid and binding obligation of it
enforceable against it in accordance with its terms and conditions, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws, from time to time in effect,
affecting creditor's rights generally.
10.4 It is not under any obligation to any person, or entity,
contractual or otherwise, that is conflicting or inconsistent in any respect
with the terms of this Agreement or that would impede the diligent and complete
fulfillment of its obligations.
10.5 It has good and marketable title to or valid leases or licenses
for, all of its properties, rights and assets necessary for the fulfillment of
its responsibilities under the Research Program, subject to no claim of any
third party other than any relevant lessors or licensors.
10.6 ALL MATERIALS PROVIDED BY ABGENIX UNDER THE RESEARCH PROGRAM
(INCLUDING WITHOUT LIMITATION ALL HYBRIDOMAS AND ANTIBODY PRODUCTS) ARE PROVIDED
"AS IS" EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, ABGENIX MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES,
INCLUDING WITHOUT
22
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LIMITATION, ANY WARRANTIES AS TO THE PATENT RIGHTS. MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, VALIDITY, NONINFRINGEMENT OR ENFORCABILITY.
11. Covenants of Abgenix and Pfizer Other Than Reporting Requirements.
Throughout the Contract Period, Abgenix and Pfizer each shall:
11.1 maintain and preserve its corporate existence, rights, franchises
and privileges in the jurisdiction of its incorporation, and qualify and remain
qualified as a foreign corporation in good standing in each jurisdiction in
which such qualification is from time to time necessary or desirable in view of
their business and operations or the ownership of their properties.
11.2 comply in all material respects with the requirements of all
applicable laws, rules, regulations and orders of any government authority to
the extent necessary to conduct the Research Program, except for those laws,
rules, regulations, and orders it may be contesting in good faith.
12. Indemnification. Pfizer and Abgenix will indemnify each other for
damages, settlements, costs, legal fees and other expenses incurred in
connection with a claim by a third party against either party based on any
action or omission of the indemnifying party's agents, employees, or officers
related to its obligations under this Agreement; provided, however, that the
foregoing shall not apply (i) if the claim is found to be based upon the
negligence, recklessness or willful misconduct of the party seeking
indemnification; or (ii) if such party falls to give the other party prompt
notice of any claim it receives and such failure materially prejudices the other
party with respect to any claim or action to which its obligation pursuant to
this Section applies. Notwithstanding the foregoing, Abgenix shall not indemnify
Pfizer for claims arising from the sale of Antibody
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<PAGE> 25
Products or exercise of rights granted to Pfizer under Section 5.2, or the
License Agreement (including without limitation product liability claims) and
Pfizer shall indemnify Abgenix with respect to such claims and to claims arising
from Joint Patent Rights, Pfizer Patent Rights, Joint Technology and Pfizer
Technology except for intellectual property claims with respect to Abgenix
Patent Rights, Abgenix Controlled-Patent Rights or Abgenix Technology. Each
party, in its sole discretion, shall choose legal counsel, shall control the
defense of such claim or action and shall have the right to settle same on such
terms and conditions it deems advisable; provided however, it shall obtain the
other party's prior consent to such part of any settlement which requires
payment or other action by the other party or is likely to have a material
adverse effect on the other party's business.
13. Notices. All notices shall be in writing mailed via certified mail,
return receipt requested, courier, or facsimile transmission addressed as
follow, or to such other address as may be designated from time to time:
If to Pfizer: Pfizer Central Research
Eastern Point Road
Groton, CT 06340
Attention: Dr. George Milne, President
with copy to: Joshua A. Kalkstein, General Counsel
If to Abgenix: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, CA 94555
Attention: President
cc:
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Attn: Kenneth A. Clark
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<PAGE> 26
Notices shall be deemed given as of the date sent.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. Miscellaneous.
15.1 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective legal representatives,
successors and permitted assigns.
15.2 Headings. Paragraph headings are inserted for convenience of
reference only and do not form a part of this Agreement,
15.3 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original.
15.4 Amendment, Waiver. This Agreement may be amended, modified,
superseded or canceled, and any of the terms may be waived, only by a written
instrument executed by each party or, in the case of waiver, by the party or
parties waiving compliance. The delay or failure of any party at any time or
times to require performance of any provisions shall in no manner affect the
rights at a later time to enforce the same. No waiver by any party of any
condition or of the breach of any term contained in this Agreement, whether by
conduct, or otherwise, in any one or more instances, shall be deemed to be, or
considered as, a further or continuing waiver of any such condition or of the
breach of such term or any other term of this Agreement.
15.5 No Third Party Beneficiaries. No third party including any employee
of any party to this Agreement, shall have or acquire any rights by
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<PAGE> 27
reason of this Agreement. Nothing contained in this Agreement shall be deemed to
constitute the parties partners with each other or any third party.
15.6 Assignment and Successors. This Agreement may not be assigned by
either party, except that each party may assign this Agreement and the rights
and interests of such party, in whole or in part, to any of its Affiliates, any
purchaser of all or substantially all of its assets or to any successor
corporation resulting from any merger or consolidation of such party with or
into such corporations.
15.7 Force Majeure. Neither Pfizer nor Abgenix shall be liable for
failure of or delay in performing obligations set forth in this Agreement, and
neither shall be deemed in breach of its obligations, if such failure or delay
is due to natural disasters or any causes reasonably beyond the control of
Pfizer or Abgenix.
15.8 Severability. If any provision of this Agreement is or becomes
invalid or is ruled invalid by any court of competent jurisdiction or is deemed
unenforceable, it is the intention of the parties that the remainder of the
Agreement shall not be affected.
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<PAGE> 28
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
PFIZER INC
By: [SIG]
------------------------------------
Title: President, Control Research Div.
---------------------------------
ABGENIX, INC.
By: [SIG]
------------------------------------
Title: Vice President,
Corporate Development
cc: Pfizer Inc, Legal Division, Groton, CT 06340
27
<PAGE> 29
EXHIBIT A
EXHIBIT A1
ABGENIX PATENT RIGHTS
[*]
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE> 30
EXHIBIT A1 (CONTINUED)
[*]
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE> 31
EXHIBIT A2
ABGENIX CONTROLLED PATENT RIGHTS
[*]
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE> 32
EXHIBIT A2 (CONTINUED)
[*]
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
---END---
<PAGE> 33
EXHIBIT B
ABGENIX, INC.
CONFIDENTIAL
Pfizer Research Plan
November 26, 1997
Page 1
RESEARCH PLAN
[*]
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE> 34
ABGENIX, INC.
CONFIDENTIAL
Pfizer Research Plan
November 26, 1997
Page 2
[*]
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE> 35
ABGENIX, INC.
CONFIDENTIAL
Pfizer Research Plan
November 26, 1997
Page 3
[*]
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE> 36
EXHIBIT C
LICENSE AND ROYALTY AGREEMENT
This LICENSE AND ROYALTY AGREEMENT is entered into as of December 22, 1997
(the "Effective Date") by and between PFIZER INC ("Pfizer"), a Delaware
corporation, having an office at 235 East 42nd Street, New York, New York 10017
and its Affiliates and ABGENIX, INC. ("Abgenix"), a Delaware corporation, having
an office at 7601 Dumbarton Circle, Fremont, CA 94555;
WHEREAS, Pfizer desires to obtain an exclusive license under Abgenix's
right, title and interest in the Patent Rights so that Pfizer can manufacture,
use, sell, offer for sale and import the Licensed Antibody Products; and
WHEREAS, Abgenix is willing to grant such license;
Therefore, in consideration of the mutual covenants and promises set forth
in this Agreement, the parties agree as follows:
1. DEFINITIONS.
The capitalized terms used in this Agreement and not defined elsewhere in
it shall have the meanings specified for such terms in this Section 1 and in the
Research Agreement.
1.1 "RESEARCH AGREEMENT" means the Collaborative Research Agreement
between Pfizer and Abgenix effective December 22, 1997.
1.2 "NET SALES" means the gross amount invoiced by Pfizer, its
<PAGE> 37
Affiliates, or any sublicensee of Pfizer for sales to a third party or parties
of Licensed Antibody Products, less [*] invoices as a separate item.
1.3 "LICENSED ANTIBODY PRODUCT" means any Antibody Product, (i) the
manufacture, use, sale, offer for sale or import would be within the scope of
any Valid Claim within the Patent Rights or (ii) is developed using a method or
using a transgenic animal, wherein the use of such method or such transgenic
animal would be within the scope of any Valid Claim within the Patent Rights.
1.4 "SUBLICENSEE" shall mean a third party who has been granted a
sublicense to make, use, sell, offer for sale or import Licensed Antibody
Products. It is understood that the term "sublicensee" shall have the foregoing
meaning whether or not such term is capitalized herein.
2. OPTION, GRANT OF LICENSE, TERM, RIGHTS AND OBLIGATIONS.
2.1 OPTION.
For a period of twenty four months (24) from the Effective Date,
Pfizer shall have the exclusive option to acquire the License described in
Section 2.2 below. Such option will be exercised in writing by Pfizer to
Abgenix.
2.2 LICENSE GRANTED TO PFIZER UNDER THE PATENT RIGHTS.
If the option described in Section 2.1 is exercised by Pfizer,
Abgenix will grant to Pfizer:
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE> 38
(a) an exclusive, worldwide license, including the right to grant
sublicenses, to manufacture, use, sell, offer for sale and import Licensed
Antibody Products under all Abgenix's right, title and interest in the Joint
Patent Rights;
(b) an exclusive, worldwide license, to manufacture, use, sell,
offer for sale and import Licensed Antibody Products under all Abgenix's right,
title and interest in the Abgenix Patent Rights for human medical uses (subject
to the non-exclusive grant of rights to GenPharm International Inc. under that
certain Cross License Agreement effective as of March 26, 1997 by and among
Abgenix, GenPharm. and other parties named therein);
(c) a non-exclusive worldwide license to manufacture, use, sell,
offer for sale and import Licensed Antibody Products under all Abgenix's right,
title and interest in the Abgenix-Controlled Patent Rights for human medical
uses.
The licenses described above in (a), (b) and (c) shall be collectively
referred to herein as the "License". Pfizer acknowledges and agrees that its
rights granted under this Agreement and the Collaborative Research Agreement
with respect to the Abgenix Patent Rights and the Abgenix-Controlled Patent
Rights licensed from Xenotech L.P. are subject to the terms and conditions
contained in agreements between Abgenix and Xenotech L.P. including the right to
prosecute, maintain and defend certain patent rights.
2.3 TERM OF LICENSE GRANT AND PAYMENT OF ROYALTIES.
Unless terminated earlier as provided below, the License in a
country shall commence on the date that Pfizer exercises its option pursuant to
Section 2.1 and shall terminate on the date of the last to expire of the Patent
Rights in such country.
2.4 PFIZER OBLIGATIONS.
2.4.1 Pfizer shall use reasonably diligent efforts to exploit
Licensed
3
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Antibody Products [*].
2.4.2 If Pfizer grants a sublicense pursuant to this Section 2, Pfizer
shall guarantee that any sublicensee fulfills all of Pfizer's obligations under
this Agreement; provided, however, that Pfizer shall not be relieved of its
obligations pursuant to this Agreement.
2.4.3 Pfizer shall not initiate any human clinical trial involving a
Licensed Antibody Product without exercising the option to a license pursuant to
Section 2. 1.
2.5 TECHNICAL ASSISTANCE.
Abgenix shall provide to Pfizer or any sublicensee of Pfizer, at
Pfizer's request and expense, any agreed technical assistance reasonably
necessary to enable Pfizer or such sublicensee to manufacture, use, sell, offer
for sale or import each Licensed Antibody Product and to enjoy fully all the
rights granted to Pfizer pursuant to this Agreement; provided, however, that
Abgenix is reasonably capable of providing that assistance. Pfizer shall
reimburse Abgenix's direct and indirect costs of providing such assistance.
3. MILESTONE PAYMENTS, ROYALTIES, PAYMENTS OF ROYALTIES, ACCOUNTING FOR
ROYALTIES, RECORDS.
3.1 Pfizer shall pay Abgenix, within [*] of the exercise of the option
described in 2.1 by Pfizer to obtain an exclusive license from Abgenix, a [*].
Payment shall be made in US currency by wire transfer in immediately available
funds to an account designated by Abgenix, or by other mutually acceptable
means. Pfizer shall be obligated to make this payment only once with respect to
the first Licensed Antibody Product for a Target Antigen affected by the
License, so that additional
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE> 40
Licensed Antibody Products for the same Target Antigen will not require Pfizer
to make additional payments.
3.2 PATENT RIGHTS.
3.2.1 Pfizer shall pay Abgenix a royalty based on the Net Sales of
each Licensed Antibody Product. Such royalty shall be paid with respect to each
country of the world from the date of the first commercial sale (the date of the
invoice of Pfizer or any sublicensee of Pfizer with respect to such sale) of
such Licensed Antibody Product in each such country until the expiration of the
last Patent Right to expire with respect to each such country and each such
Licensed Antibody Product.
3.2.2 If the manufacture and sale of an Antibody Product [*], Pfizer
will pay to Abgenix a royalty based on the Net Sales of each Antibody Product in
each such country for ten (10) years after the first commercial sale of such
Antibody Product in such country.
3.3 ROYALTY RATES.
3.3.1 Pfizer shall pay Abgenix a royalty for the sale of each
Licensed Antibody Product under Section 2.2 as set forth in Section 3.2; [*] for
such Licensed Antibody Product for such calendar year, the
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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[*]. Notwithstanding the [*] in the United States. As used in this Section
3.3.1, the [*] shall mean the average [*].
3.3.2 The royalty paid by Pfizer to Abgenix shall be [*] with respect to
Licensed Antibody Products. It is understood that the royalty rate specified in
this Section 3.3.2 is subject to [*] below. Notwithstanding those sections, or
any other provisions of this Agreement, in no event shall the royalty paid to
Abgenix with respect to Net Sales of a Licensed Antibody Product [*] under
Section 4.4 [*]. In the event that an Antibody Product unit is made, used or
sold, in a country in which there [*] shall be made.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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3.4 RENEGOTIATION OF ROYALTY RATES.
The parties acknowledge that the royalty rates set forth in Section
3.3 are based on the expectation that Licensed Antibody Products will be
administered to patients intravenously. If Pfizer identifies or develops a
different method of administration ("New Dosage Form") with respect to a
Licensed Antibody Product or Antibody Products which represents a commercial
opportunity for Pfizer or improves the safety or efficacy of such Licensed
Antibody Product, the parties may negotiate, as mutually agreed, a new royalty
rate for such Licensed Antibody Product in such New Dosage Form to account for
development costs and changes in the cost of goods, selling price and projected
annual Net Sales. It is understood, however, that the royalty rate specified in
Section 3.3.2 shall be modified only as Pfizer and Abgenix mutually agree.
3.5 PAYMENT DATES.
Royalties shall be paid by Pfizer on Net Sales within sixty (60)
days after the end of each calendar quarter in which such Net Sales are made.
Such payments shall be accompanied by a statement showing the Net Sales of each
Licensed Antibody Product by Pfizer or any sublicensee of Pfizer in each
country, the applicable royalty rate for such Licensed Antibody Product, and a
calculation of the amount of royalty due, including any offsets.
3.6 ACCOUNTING.
The Net Sales used for computing the royalties payable to Abgenix by
Pfizer shall be computed and paid in US dollars by wire transfer in immediately
available funds to a U.S. account designated by Abgenix, or by other mutually
acceptable means. For purposes of determining the amount of royalties due, the
amount of Net Sales in any foreign currency shall be computed by (a) converting
such amount into U.S. dollars at the prevailing commercial rate of exchange for
purchasing dollars with such foreign currency as published in the
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<PAGE> 43
Wall Street Journal for the close of the last business day of the calendar
quarter for which the relevant royalty payment is to be made by Pfizer and (b)
deducting the amount of any governmental tax, duty, charge, or other fee
actually paid in respect of such conversion into, and remittance of U.S.
dollars.
3.7 RECORDS.
Pfizer shall keep for three (3) years from the date of each payment of
royalties complete and accurate records of sales by Pfizer of each Licensed
Antibody Product in sufficient detail to allow the accruing royalties to be
determined accurately. Abgenix shall have the right for a period of [*]
after receiving any report or statement with respect to royalties due and
payable to appoint at its expense an independent certified public accountant
reasonably acceptable to Pfizer to inspect the relevant records of Pfizer to
verify such report or statement. Pfizer shall make its records available for
inspection by such independent certified public accountant during regular
business hours at such place or places where such records are customarily kept,
upon reasonable notice from Abgenix, to verify the accuracy of the reports and
payments. Such inspection right shall not be exercised more than once in any
calendar year nor more than once with respect to sales in any given period.
Abgenix agrees to hold in strict confidence all information concerning royalty
payments and reports, and all information learned in the course of any audit or
inspection, except to the extent necessary for Abgenix to reveal such
information in order to enforce its rights under this Agreement or if disclosure
is required by law. The failure of Abgenix to request verification of any report
or statement during said three-year period shall be considered acceptance of the
accuracy of such report, and Pfizer shall have no obligation to maintain records
pertaining to such report or statement beyond said three-year period. The
results of each inspection, if any, shall be binding on both parties.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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3.8 MILESTONE PAYMENTS. Pfizer shall pay Abgenix, within [*] of the
completion of each event set forth below ("Event"), the payment listed opposite
that Event. Payments shall be made in US dollars by wire transfer in immediately
available funds to a U.S. bank account designated by Abgenix, or other mutually
acceptable means. Pfizer shall be obligated to make each payment only once with
respect to each Licensed Antibody Product affected by an Event; provided,
however, that such payment for such Event shall not be due with respect to any
subsequent Licensed Antibody Product directed to a Target Antigen which has
previously been the subject of the same Event. All payments made by Pfizer
pursuant to this Section 3.8 with respect to a Licensed Antibody Product shall
[*] of such Licensed Antibody Product; provided, however, that [*] in any
calendar year with respect to such Licensed Antibody Product shall [*]
<TABLE>
<CAPTION>
EVENT AMOUNT
----- ------
<S> <C>
[*]
</TABLE>
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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For the purposes of the foregoing, [*] shall mean [*]
shall mean [*]
4. LEGAL ACTION.
4.1 ACTUAL OR THREATENED DISCLOSURE OR INFRINGEMENT.
When information comes to the attention of Pfizer to the effect
that any Joint Patent Rights relating to a Licensed Antibody Product have been
or are threatened to be unlawfully infringed, Pfizer shall have the right at its
expense to take such action as It may deem necessary to prosecute or prevent
such unlawful infringement, including the right to bring or defend any suit,
action or proceeding involving any such infringement. Pfizer shall notify
Abgenix promptly of the receipt of any such information and of the commencement
of any such suit, action or proceeding. If Pfizer determines that it is
necessary or desirable for Abgenix to join any such suit, action or proceeding,
Abgenix shall, at Pfizer's expense, execute all papers and perform such other
acts as may be reasonably required to permit Pfizer to commence such action,
suit or proceeding in which case Pfizer shall hold Abgenix free, clear and
harmless from any and all costs and expenses of litigation, including attorneys
fees. If Pfizer brings a suit, it shall have the night first to reimburse itself
out of any sums recovered in such suit or in its settlement for all costs and
expenses, including attorney's fees, related to such suit or settlement, and
[*] of any funds that
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE> 46
shall remain from said recovery shall be paid to Abgenix and the balance of such
funds shall be retained by Pfizer. If Pfizer does not, within [*] after giving
notice to Abgenix of the above-described Information, notify Abgenix of Pfizer's
intent to bring suit against any infringer, Abgenix shall have the right to
bring suit for such alleged infringement, but it shall not be obligated to do
so, and may join Pfizer as party plaintiff, if appropriate, in which event
Abgenix shall hold Pfizer free, clear and harmless from any and all costs and
expenses of such litigation, including attorney's fees, and any sums recovered
in any such suit or in its settlement shall belong to Abgenix. However, [*] of
any such sums received by Abgenix, after deduction of all costs and expenses
related to such suit or settlement, including attorney's fees paid, shall be
paid to Pfizer. Each party shall always have the right to be represented by
counsel of its own selection and at its own expense in any suit instituted by
the other for infringement under the terms of this Section. If Pfizer lacks
standing and Abgenix has standing to bring any such suit, action or proceeding,
then Abgenix shall do so at the request of Pfizer and at Pfizer's expense.
4.2 DEFENSE OF INFRINGEMENT CLAIMS.
Abgenix will cooperate with Pfizer at Pfizer's expense in the
defense of any suit, action or proceeding against Pfizer or any sublicensee of
Pfizer alleging the infringement of the intellectual property rights of a third
party by reason of the use of Patent Rights in the manufacture, use or sale of
the Licensed Antibody Product. Pfizer shall give Abgenix prompt written notice
of the commencement of any such suit, action or proceeding or claim of
infringement and will furnish Abgenix a copy of each communication relating to
the alleged infringement. Abgenix shall give to Pfizer all authority (including
the right to exclusive control of the defense of any such suit, action or
proceeding and the
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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exclusive right after consultation with Abgenix, to compromise, litigate, settle
or otherwise dispose of any such suit, action or proceeding), at Pfizer's
expense, including by providing information and assistance necessary to defend
or settle any such suit, action or proceeding; provided, however, Pfizer shall
obtain Abgenix's prior consent to such part of any settlement which contemplates
payment or other action by Abgenix or has a material adverse effect on Abgenix's
business. If the parties agree that Abgenix should institute or join any suit,
action or proceeding pursuant to this Section, Pfizer may, at Pfizer's expense,
join Abgenix as a defendant if necessary or desirable, and Abgenix shall execute
all documents and take all other actions, including giving testimony, which may
reasonably be required in connection with the prosecution of such suit, action
or proceeding.
4.3 HOLD HARMLESS.
Abgenix agrees to defend, protect, indemnify and hold harmless
Pfizer and any sublicensee of Pfizer, from and against any loss or expense
arising from any proven claim of a third party that it has been granted rights
by Abgenix that Pfizer or any sublicensee of Pfizer in exercising their rights
granted to Pfizer by Abgenix pursuant to this Agreement, has infringed upon such
rights granted to such third party by Abgenix.
4.4 THIRD PARTY LICENSES.
If the manufacture, use or sale by Pfizer of a Licensed Antibody
Product in any country would, in the opinion of both Pfizer and Abgenix,
infringe a patent owned by a third party, Pfizer and Abgenix, upon mutual
consent, shall attempt to obtain a license under such patent at Pfizer's
expense. If such license is obtained under such patent, [*] of any payments made
by Pfizer to such third party shall be deductible from royalty payments due from
Pfizer to Abgenix pursuant to this Agreement; provided, however, that in
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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no event shall royalties payable to Abgenix be lower than [*] of Net Sales as a
result of all such deductions. All such computations, payments, and adjustments
shall be on a country by country and patent by patent basis.
5. REPRESENTATION AND WARRANTY.
5.1 Abgenix represents and warrants to Pfizer that it has the right to
grant the License granted pursuant to this Agreement, and that the License so
granted does not conflict with or violate the terms of any agreement between
Abgenix and any third party.
5.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5 ABGENIX MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES,
INCLUDING ANY WARRANTIES AS TO THE PATENT RIGHTS, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE.
6. TREATMENT OF CONFIDENTIAL INFORMATION.
6.1 CONFIDENTIALITY.
6.1.1 Pfizer and Abgenix each recognize that the other's
Confidential Information constitutes highly valuable, confidential information,
Subject to Pfizer's right and obligations pursuant to this Agreement, Pfizer and
Abgenix each agree that during the term of the Research Agreement and for five
(5) years thereafter, it will keep confidential, and will cause its Affiliates
to keep confidential, all Abgenix Confidential Information or Pfizer
Confidential Information, as the case may be, that is disclosed to it or to any
of its Affiliates pursuant to this Agreement. Neither Pfizer, its Affiliates nor
Abgenix shall use Confidential Information of the other party except as
expressly permitted under this Agreement. For all purposes of this Section 6, it
is understood that Joint
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Technology shall be deemed Confidential Information of both parties.
6.1.2 Subject to Pfizer's rights and obligations pursuant to this
Agreement, Pfizer and Abgenix each agree that any disclosure of the other's
Confidential Information to any officer, employee or agent of the other party or
of any of its Affiliates shall be made only if and to the extent necessary to
carry out its responsibilities under this Agreement and shall be limited to the
maximum extent possible consistent with such responsibilities. Subject to
Pfizer's rights and obligations pursuant to this Agreement, Pfizer and Abgenix
each agree not to disclose the other's Confidential Information to any third
parties under any circumstance without written permission from the other party.
Each party shall take such action, and shall cause its Affiliates to take such
action, to preserve the confidentiality of each other's Confidential Information
as it would customarily take to preserve the confidentiality of its own
Confidential Information. Each party, upon the other's request, will return all
the Confidential Information disclosed to it by the other party pursuant to this
Agreement, including all copies and extracts of documents, within sixty (60)
days of the request upon the termination of this Agreement except for one (1)
copy which may be kept for the purpose of complying with continuing obligations
under this Agreement.
6.2 PUBLICITY. Except as required by law, neither party may disclose the
terms of this Agreement without the written consent of the other party.
6.3 DISCLOSURE REQUIRED BY LAW. If either party is requested to disclose
the Confidential Information in connection with a legal or administrative
proceeding or is otherwise required by law to disclose the Confidential
Information, such party will give the other party prompt notice of such request.
The disclosing party may seek an appropriate protective order or other remedy or
waive compliance with the provisions of this Agreement. If such party seeks a
protective order or other remedy, the other party will cooperate. If such party
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<PAGE> 50
fails to obtain a protective order or waive compliance with the relevant
provisions of this Agreement, the other party will disclose only that portion of
Confidential Information which its legal counsel determines it is required to
disclose.
6.4 DISCLOSURE OF INVENTIONS. Each party shall promptly inform the other
about all inventions in the Area within Joint Technology that are conceived,
made or developed in the course of carrying out the Research Program by
employees of, consultants to, either of them solely, or jointly with employees
of, or consultants to the other.
7. PROVISIONS CONCERNING FILING, PROSECUTION AND MAINTENANCE OF JOINT PATENT
RIGHTS. The following provisions relate to the filing, prosecution and
maintenance of Joint Patent Rights during the term of this Agreement:
7.1 Filing. Prosecution and Maintenance by Abgenix. With respect to
Joint Patent Rights in which Abgenix employees or consultants, alone or together
with Pfizer employees, or consultants are named as inventors, Abgenix shall have
the exclusive right and obligation :
(a) to file applications for letters patent on patentable
inventions included in Joint Patent Rights; provided, however, that Abgenix
shall consult with Pfizer regarding countries in which such patent applications
should be filed and shall file patent applications in those countries where
Pfizer requests that Abgenix file such applications; and, further provided, that
Abgenix, at its option and expense, may file in countries where Pfizer does not
request that Abgenix file such applications;
(b) to take all reasonable steps to prosecute all pending and
new patent applications included within Joint Patent Rights;
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(c) to respond to oppositions, nullity actions, re-examinations,
revocation actions and similar proceedings filed by third parties against the
grant of letters patent for such applications;
(d) to maintain in force any letters patent included in Joint
Patent Rights by duly filing all necessary papers and paying any fees required
by the patent laws of the particular country in which such letters patent were
granted; and
(e) to cooperate fully with, and take all necessary actions
requested by, Pfizer in connection with the preparation, prosecution and
maintenance of any letters patent included in Joint Patent Rights.
Abgenix shall notify Pfizer in a timely manner of any decision
to abandon a pending patent application or an issued patent included in Joint
Patent Rights. Thereafter, Pfizer shall have the option, at its expense, of
continuing to prosecute any such pending patent application or of keeping the
issued patent in force.
7.1.1 Copies of Documents. Abgenix and Pfizer shall provide to each
other copies of all patent applications that are part of Joint Patent Rights
prior to filing, for the purpose of obtaining substantive comment of the other
party's patent counsel. Abgenix and Pfizer shall also provide to the other
copies of all documents relating to prosecution of all such patent applications
in a timely manner and shall provide to the other every six (6) months a report
detailing the status of all patent applications that are a part of Joint Patent
Rights.
7.1.2 Reimbursement of Costs for Filing Prosecuting and Maintaining
Joint Patent Rights. Within thirty (30) days of receipt of invoices from
Abgenix, Pfizer shall reimburse Abgenix for all the costs of filing,
prosecuting, responding to opposition and maintaining patent applications and
patents in countries where Pfizer requests that patent applications be filed,
prosecuted and maintained. Such reimbursement shall be in addition to other
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funding payments under this Agreement and shall include such costs of all
activities described in 7.1 (a)-(e) above. However, Pfizer may, upon sixty (60)
days notice, request that Abgenix discontinue filing or prosecution of patent
applications in any country and discontinue reimbursing Abgenix for the costs of
filing, prosecuting, responding to opposition or maintaining such patent
application or patent in any country. Abgenix shall pay all costs in those
countries in which Pfizer requests that Abgenix not file, prosecute or maintain
patent applications and patents, but in which Abgenix, at its option, elects to
do so.
7.1.3 Pfizer shall have the right to FILE on behalf of and as an
agent for Abgenix all applications for, and take all actions necessary to obtain
patent extensions pursuant to 35 USC Section 156 and foreign counterparts with
respect to the Joint Patent Rights to the extent that such extensions are
available by reason of a Licensed Antibody Product under the License Agreement
during the period the License Agreement is in effect. Abgenix agrees, to sign,
such further documents and take such further actions as may be requested by
Pfizer in this regard, at Pfizer's expense
7.2 Filing, Prosecution and Maintenance by Pfizer. With respect to
Patent Rights in which Pfizer employees or consultants alone are named as
inventors, Pfizer shall have those rights and duties ascribed to Abgenix in
Section 7.1. except that Pfizer will bear all related expenses.
7.3 Neither party may disclaim a Valid Claim within Joint Patent Rights
without the consent of the other.
8. OTHER AGREEMENTS.
Concurrently with the execution of this Agreement, Abgenix and Pfizer
shall enter into a Research Agreement and a Stock Purchase Agreement. This
Agreement, the Research Agreement, and the Stock Purchase Agreement are the
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sole agreements with respect to the subject matter and supersede all other
agreements and understanding between the parties with respect to same.
9. TERMINATION AND DISENGAGEMENT.
9.1 Events OF TERMINATION. The following events shall constitute events
of termination ("Events of Termination"):
(a) Any written representation or warranty by Abgenix or Pfizer, or
any of its officers, made under or in connection with this Agreement shall prove
to have been incorrect in any material respect when made;
(b) Abgenix or Pfizer shall fail in any material respect to perform
or observe any term, covenant or understanding contained in this Agreement or in
any of the other documents or instruments delivered pursuant to, or concurrently
with, this Agreement, and any such failure shall remain unremedied for thirty
(30) days after written notice to the failing party.
9.2 TERMINATION. Upon the occurrence of any Event of Termination, the
party not responsible may, by notice to the other party, terminate this
Agreement.
9.3 Termination of this Agreement by either party, with or without
cause, will not terminate the licenses granted pursuant to Section 5.2 of the
Research Agreement.
9.4 Termination of this Agreement for any reason shall be without
prejudice to:
(a) the rights and obligations of the parties provided in Sections
6, 7 and 10;
(b) Abgenix's right to receive all royalty payments accrued
hereunder; or
(c) any other remedies which either party may otherwise have.
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10. INDEMNIFICATION.
Pfizer and Abgenix will indemnify each other for damages, settlements,
costs, legal fees and other expenses incurred in connection with a claim by a
third party against either party based on any action or omission of the
indemnifying party's agents, employees, or officers related to its obligations
under this Agreement; provided, however, that the foregoing shall not apply (i)
if the claim is found to be based upon the negligence, recklessness or wilful
misconduct of the party seeking indemnification; or (ii) if such party fails to
give the other party prompt notice of any claim it receives and such failure
materially prejudices the other party with respect to any claim or action to
which its obligation pursuant to this Section applies. Notwithstanding the
foregoing, Abgenix shall not indemnify Pfizer for claims arising from the sale
of Antibody Products or exercise of rights granted to Pfizer under Section 5.2
of the Research Agreement, or the License Agreement (including without
limitation product liability claims) and Pfizer shall indemnify Abgenix with
respect to such claims and to claims arising from Joint Patent Rights, Pfizer
Patent Rights, Joint Technology and Pfizer Technology except for intellectual
property claims with respect to Abgenix Patent Rights, Abgenix Controlled-Patent
Rights or Abgenix Technology. Each party, in its sole discretion, shall choose
legal counsel, shall control the defense of such Claim or action and shall have
the right to settle same on such terms and conditions it deems advisable;
provided however, it shall obtain the other party's prior consent to such part
of any settlement which requires payment or other action by the other party or
is likely to have a material adverse effect on the other party's business.
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11. NOTICES AND REPORTS.
11.1 All notices shall be in writing mailed via certified mail, return
receipt requested, courier, or facsimile transmission addressed as follows, or
to such other address as may be designated from time to time:
If to Pfizer: Pfizer Central Research
Eastern Point Road
Groton, CT 06340
Attention: Dr. George Milne, President
with copy to: Joshua A. Kalkstein, General Counsel
If to Abgenix: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, CA 94555
Attention: President
cc:
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Attn: Kenneth A. Clark
Notices shall be deemed given as of the date sent.
11.2 Reports. Pfizer agrees to keep Abgenix informed with respect to
activities and progress toward further research, development and
commercialization of Licensed Antibody Products. Pfizer agrees to provide to
Abgenix every six months a summary of such activities and progress. In addition,
Pfizer will provide to Abgenix copies of any data regarding the immunogenicity
and pharmacokinetics of the Antibody Products together with copies of any
reports or summaries of such data. Abgenix agrees that all such information will
be deemed Pfizer Confidential Information.
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12. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
13. MISCELLANEOUS.
13.1 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective legal representatives, successors
and permitted assigns.
13.2 HEADINGS. Paragraph headings are inserted for convenience of
reference only and do not form a part of this Agreement.
13.3 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original.
13.4 AMENDMENT; WAIVER; ETC. This Agreement may be amended, modified,
superseded or canceled, and any of the terms may be waived, only by a written
instrument executed by each party or, in the case of waiver, by the party or
parties waiving compliance. The delay or failure of any party at any time or
times to require performance of any provisions shall in no manner affect the
rights at a later time to enforce the same. No waiver by any party of any
condition or of the breach of any term contained in this Agreement, whether by
conduct, or otherwise, in any one or more instances, shall be deemed to be, or
considered as, a further or continuing waiver of any such condition or of the
breach of such term or any other term of this Agreement.
13.5 NO THIRD PARTY BENEFICIARIES. No third party including any employee
of any party to this Agreement, shall have or acquire any rights by reason of
this Agreement. Nothing contained in this Agreement shall be deemed to
constitute the parties partners with each other or any third party.
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13.6. ASSIGNMENT AND SUCCESSORS. This Agreement may not be assigned by
either party, except that each party may assign this Agreement and the rights
and interests of such party, in whole or in part, to any of its Affiliates, any
purchaser of all or substantially all of its assets or to any successor
corporation resulting from any merger or consolidation of such party with or
into such corporations.
13.7 FORCE MAJEURE. Neither Pfizer nor Abgenix shall be liable for failure
of or delay in performing obligations set forth in this Agreement, and neither
shall be deemed in breach of its obligations, if such failure or delay is due to
natural disasters or any causes reasonably beyond the control of Pfizer or
Abgenix.
13.8 SEVERABILITY. If any provision of this Agreement is or becomes
invalid or is ruled invalid by any court of competent jurisdiction or is deemed
unenforceable, it is the intention of the parties that the remainder of the
Agreement shall not be affected.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
PFIZER INC ABGENIX, INC.
By: [SIG] By: [SIG]
-------------------------------- ------------------------------
Title: President, Control, Research Title: Vice President, Corporate
Development Development
---------------------------- ---------------------------
cc: Pfizer Inc, Legal Division, Groton, CT 06340
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EXHIBIT D
SERIES C PREFERRED
STOCK PURCHASE AGREEMENT
THIS SERIES C PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is
made as of the 12th day of January, 1998, by and between Abgenix, Inc., a
Delaware corporation located at 7601 Dumbarton Circle, Fremont, California 94555
(the "Company"), and Pfizer, Inc. (the "Investor").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Shares.
1.1 Sale of Shares.
(a) The Company shall adopt and file with the
Secretary of State of Delaware on or before the Closing (as defined below) a
Certificate of Designations in the form attached hereto as Exhibit A.
(b) Subject to the terms and conditions of this
Agreement, the Investor agrees to purchase at the Closing and the Company agrees
to sell and issue to the Investor at the Closing, 160,000 shares of the
Company's Series C Preferred Stock at a per share price of $8.00 for an
aggregate purchase price of $1.28 million.
(c) The number of shares of Series C Preferred Stock to
be sold pursuant to this Agreement are hereinafter referred to as the "Shares."
The total amount of Common Stock and other securities issuable upon conversion
of the Shares is hereinafter referred to as the "Conversion Stock." The Shares
and the Conversion Stock are hereinafter collectively referred to as the
"Securities."
1.2 Closing. The purchase and sale of the Shares shall take place
at the offices of Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo
Alto, California, at 11:00 A.M., on January 12, 1998, or at such other time and
place as the Company and Investors acquiring in the aggregate more than half the
Shares sold pursuant hereto mutually agree upon orally or in writing (which time
and place are designated as the "Closing"). At the Closing the Company shall
deliver to the Investor certificate(s) representing the Shares which such
Investor is purchasing, against delivery to the Company by such Investor of a
check or wire transfer in the aggregate amount of the purchase price payable to
the Company's order.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investor that, except as set forth on a Schedule
of Exceptions attached hereto as Exhibit B, which exceptions shall be deemed to
be representations and warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has
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all requisite corporate power and authority to carry on its business as now
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would have a
material adverse effect on its business or properties.
2.2 Capitalization. The authorized capital of the Company
consists, or will consist prior to the Closing, of:
(a) 20,000,000 shares of Preferred Stock (the
"Preferred Stock"), of which 5,396,667 shares have been designated Series A
Preferred Stock, 3,385,000 shares have been designated Series B Preferred Stock,
160,000 shares have been designated Series C Preferred Stock and the remaining
11,058,333 have not been designated. 4,416,667 shares of Series A Preferred
Stock are issued and outstanding, 3,267,685 shares of Series B Preferred Stock
are issued and outstanding and 160,000 shares of Series C Preferred Stock will
be sold pursuant to this Agreement. The rights, preferences, privileges and
restrictions of the Shares will be as stated in the Company's Certificate of
Designations attached hereto as Exhibit A.
(b) 50,000,000 shares of Common Stock (the "Common
Stock"), of which 171,620 shares are issued and outstanding and 25,000 are
subject to a purchase right pursuant to a license agreement between the Company
and Ronald J. Billing, M.D., dated February 1, 1997.
(c) Options exercisable for up to 1,614,861 shares of
Common Stock, and after accounting for 171,620 shares of Common Stock issued
upon exercise of options or stock purchase rights, there are 604,769 shares
available for grant under the Company's Incentive Stock Plan.
(d) Warrants exercisable for 121,667 shares of Series A
Preferred Stock issued to Cell Genesys, Inc.
(e) Except as provided herein and for (i) the conversion
privileges of the Shares and (ii) the right of first offer provided in the
Amended and Restated Stockholder Rights Agreement attached hereto as Exhibit C
(the "Rights Agreement"), there are no other outstanding options, warrants,
rights (including conversion or preemptive rights) or agreements for the
purchase or acquisition from the Company of any shares of its capital stock. The
Company is not a party or subject to any agreement or understanding, and, to the
Company's knowledge, there is no agreement or understanding between any persons
and/or entities, which affects or relates to the voting or giving of written
consents with respect to any security.
2.3 Subsidiaries. The Company does not presently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity. The Company is not a participant in any joint venture,
partnership, or similar arrangement.
2.4 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the Rights
Agreement, the performance of all obligations of the Company hereunder and
thereunder and
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the authorization, issuance (or reservation for issuance) and delivery of the
Shares being sold hereunder has been taken or will be taken prior to the
Closing, and this Agreement and the Rights Agreement constitute valid and
legally binding obligations of the Company, enforceable in accordance with their
terms.
2.5 Valid Issuance of Preferred and Common Stock.
(a) The Shares which are being purchased by the
Investor hereunder, when issued, sold and delivered in accordance with the terms
hereof for the consideration expressed herein, will be duly and validly issued,
fully paid and nonassessable and, based in part upon the representations of the
Investor in this Agreement, will be issued in compliance with all applicable
federal and state securities laws. The Conversion Stock has been duly and
validly reserved for issuance and, upon issuance in accordance with the terms of
the Certificate of Designations, shall be duly and validly issued, fully paid
and nonassessable, and issued in compliance with all applicable securities laws,
as presently in effect, of the United States and each of the states whose
securities laws govern the issuance of the Shares hereunder and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement or the Rights Agreement and under applicable state and federal
securities law.
(b) The outstanding shares of Common Stock and Preferred
Stock are all duly and validly authorized and issued, fully paid and
nonassessable, and were issued in compliance with all applicable federal and
state securities laws.
2.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority on
the part of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement and the Rights Agreement, except for
the filing pursuant to Section 25102(f) of the California Corporate Securities
Law of 1968, as amended, and the rules thereunder, which filing will be effected
within 15 days of the sale of the Shares hereunder or as otherwise required by
Rule 506 of the Securities Act of 1933, as amended (the "Act").
2.7 Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against the Company which
questions the validity of this Agreement and the Rights Agreement or the right
of the Company to enter into them, or to consummate the transactions
contemplated hereby and thereby, or which might result, either individually or
in the aggregate, in any material adverse changes in the assets, condition,
affairs or prospects of the Company, financially or otherwise, or any change in
the current equity ownership of the Company, nor is the Company aware that there
is any basis for the foregoing. The foregoing includes, without limitation,
actions pending or threatened (or any basis therefor known to the Company)
involving the prior employment of any of the Company's employees, their use in
connection with the Company's business of any information or techniques
allegedly proprietary to any of their former employers, or their obligations
under any agreements with prior employers or negotiations by the Company with
proposed backers of, or investors in, the Company or its proposed business. The
Company is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality.
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There is no action, suit, proceeding or investigation by the Company currently
pending or which the Company intends to initiate.
2.8 Patents and Trademarks. The Company owns or possesses
sufficient title and ownership of or rights to all patents, trademarks, service
marks, trade names, copyrights, trade secrets, licenses, information,
proprietary rights and processes necessary for its business as now conducted and
as proposed without any conflict with or infringement of the rights of others.
There are no outstanding options, licenses, or agreements of any kind relating
to the foregoing, nor is the Company bound by or a party to any options,
licenses or agreements of any kind with respect to the patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses, information,
proprietary rights and processes of any other person or entity. The Company has
not received any communications alleging that the Company has violated or, by
conducting its business as proposed to be conducted immediately after the
Closing, would violate any of the patents, trademarks, service marks, trade
names, copyrights or trade secrets, licenses or other proprietary rights of any
other person or entity. The Company is not aware that any of its employees is
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order of
any court or administrative agency, that would interfere with the use of his or
her best efforts to promote the interests of the Company or that would conflict
with the Company's business as proposed to be conducted immediately after the
Closing. Neither the execution nor delivery of this Agreement or the Rights
Agreement nor the carrying on of the Company's business by the employees of the
Company, nor the conduct of the Company's business as proposed to be conducted
immediately after the Closing, will, to the Company's knowledge, conflict with
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, any contract, covenant or instrument under which any of such
employees is now obligated. The Company does not believe it is or will be
necessary to utilize any inventions of any of its employees (or people it
currently intends to hire) made prior to their employment by the Company. The
Company has not granted rights to manufacture, produce, assemble, license,
market, or sell its products to any other person and is not bound by any
agreement that affects the Company's exclusive right to develop, manufacture,
assemble, distribute, market, or sell its products.
2.9 Compliance with Other Instruments.
(a) The Company is not in violation or default of any
provisions of its Certificate of Incorporation, Certificate of Designations or
Bylaws, as amended, or of any instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound or, to its knowledge, of
any provision of federal or state statute, rule or regulation applicable to the
Company. The execution, delivery and performance of this Agreement and the
Rights Agreement and the consummation of the transactions contemplated hereby
and thereby will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company or the suspension, revocation,
impairment, forfeiture or nonrenewal of any material permit, license,
authorization or approval applicable to the Company, its business or operations
or any of its assets or properties.
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(b) To the Company's knowledge, the Company has met
every condition, and has performed no act, the occurrence of which would result
in the Company's loss of any right granted under any permit, license,
authorization, approval, distribution or other agreement.
2.10 Related Party Transactions. There are no obligations of the
Company to employees, officers, directors or 5% stockholders of the Company
other than (a) for payment of salary for services rendered, (b) reimbursement
for reasonable expenses incurred on behalf of the Company and (c) for other
standard employee benefits made generally available to all employees (including
stock option agreements outstanding under any stock option plan approved by the
Board of Directors of the Company). No employee, officer, director or 5%
stockholder of the Company or member of his or her immediate family thereof is
indebted to the Company, nor is the Company indebted (or committed to make loans
or extend or guarantee credit) to any of them. To the Company's knowledge, none
of such persons has any direct or indirect ownership interest in any firm or
corporation with which the Company is affiliated or with which the Company has a
business relationship, or any firm or corporation that competes with the
Company, except that employees, officers or directors of the Company and members
of their immediate families may own stock in publicly traded companies that may
compete with the Company. To the Company's knowledge except for agreements to
purchase shares of the Company's securities, no officer or director or any
member of their immediate families is, directly or indirectly, interested in any
material contract with the Company.
2.11 Agreements; Action.
(a) Except for agreements explicitly contemplated
hereby, there are no agreements, understandings or proposed transactions between
the Company and any of its officers, directors, affiliates, or any affiliate
thereof.
(b) There are no agreements, understandings,
instruments, contracts or proposed transactions to which the Company is a party
or by which it is bound which involve (i) obligations (contingent or otherwise)
of, or payments to the Company in excess of $50,000, (ii) the license of any
patent, copyright, trade secret or other proprietary right to or from the
Company, (iii) provisions restricting or affecting the development, manufacture
or distribution of the Company's products or services, or (iv) indemnification
by the Company with respect to infringements of proprietary rights.
(c) The Company has not (i) declared or paid any
dividends, or authorized or made any distribution upon or with respect to any
class or series of its capital stock, (ii) incurred any indebtedness for money
borrowed or incurred any other liabilities individually in excess of $50,000 or
in excess of $200,000 in the aggregate, (iii) made any loans or advances to any
person, other than ordinary advances for travel expenses, or (iv) sold,
exchanged or otherwise disposed of any of its assets or rights, other than in
the ordinary course of business.
(d) The Company is not a party to and is not bound by
any contract, agreement or instrument, or subject to any restriction under its
Certificate of Incorporation, Certificate
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<PAGE> 64
of Designations or Bylaws, as amended, which materially adversely affects its
business as now conducted and as proposed to be conducted.
2.12 Disclosure. The Company has fully provided the Investor with
all the information which such Investor has requested for deciding whether to
purchase the Shares and all information which the Company believes is reasonably
necessary to enable such Investor to make such decision. Neither this Agreement
nor any other statements or certificates made or delivered in connection
herewith contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements herein or therein not misleading.
2.13 Registration or First Offer Rights. Except as provided in
the Rights Agreement, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, or any right of first offer to
any person or entity.
2.14 Corporate Documents. Except for amendments necessary to
satisfy representations and warranties or conditions contained herein (the form
of which amendments has been approved by the Investor), the Company's
Certificate of Incorporation, Certificate of Designations and Bylaws, as
amended, are in the form previously provided to the Investor.
2.15 Title to Property and Assets. The Company owns its property
and assets free and clear of all mortgages, liens, loans and encumbrances,
except such encumbrances and liens which arise in the ordinary course of
business and do not individually or in the aggregate materially impair the
Company's ownership or use of such property or assets. With respect to the
property and assets it leases, the Company is in compliance with such leases
and, to its knowledge, holds a valid leasehold interest free of any liens,
claims or encumbrances.
2.16 Permits. The Company has all franchises, permits, licenses,
and any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, or financial condition of the Company and believes it can
obtain, without undue burden or expense, any similar authority for the conduct
of its business as planned to be conducted. The Company is not in default in any
material respect under any of such franchises, permits, licenses or other
similar authority.
2.17 Financial Statements. The Company has delivered to the
Investor its audited balance sheet and income statement for the period from
inception (July 15, 1996) to December 31, 1996 and unaudited balance sheet and
income statement for the nine month period ended September 30, 1997
(collectively the "Financial Statements"). The Financial Statements, together
with the notes thereto, (i) are complete and correct in all material respects,
(ii) are in accordance with the Company's books and records, (iii) present
fairly its financial position as of that date and the results of its operations
for the period indicated, and (iv) have been prepared in conformity with
generally accepted accounting principles consistently applied throughout the
periods indicated, subject, in the case of interim statements, to normal year
end adjustments and the absence of footnotes. Except as set forth in the
Financial Statements, the Company has no material liabilities, contingent or
otherwise, other than
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(i) liabilities incurred in the ordinary course of business and (ii) obligations
under contracts and commitments incurred in the ordinary course of business and
not required under generally accepted accounting principles to be reflected in
the Financial Statements which, in both cases, individually or in the aggregate,
are not material to the financial condition or operating results of the Company.
Except as disclosed in the Financial Statements, the Company is not a guarantor
or indemnitor of any indebtedness of any other person, firm or corporation.
2.18 Changes. To the Company's knowledge, since September 30,
1997, there has not been:
(a) Any change in the assets, liabilities, financial
condition or operating results of the Company from that reflected in the
Financial Statements, except changes in the ordinary course of business that
have not been, in the aggregate, materially adverse.
(b) any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the business,
properties, or financial condition of the Company (as such business is presently
conducted and as it is proposed to be conducted);
(c) any waiver or compromise by the Company of a
valuable right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim
or encumbrance or payment of any obligation by the Company, except in the
ordinary course of business and which is not material to the business,
properties, or financial condition of the Company (as such business is presently
conducted and it is proposed to be conducted);
(e) any material change to a material contract or
arrangement by which the Company or any of its assets is bound or subject;
(f) any material change in any compensation arrangement
or agreement with any employee, officer, director, or stockholder;
(g) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of
any key officer of the Company; and the Company, to its knowledge, does not know
of the impending resignation or termination of employment of any such officer;
(i) receipt of notice that there has been a loss of, or
material order cancellation by, any major customer of the Company;
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(j) any mortgage, pledge, transfer of a security
interest in, or lien, created by the Company, with respect to any of its
material properties or assets, except liens for taxes not yet due or payable;
(k) any loans or guarantees made by the Company to or
for the benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(l) any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any of such stock by the
Company;
(m) to the Company's knowledge, any other event or
condition of any character that might materially and adversely affect the
business, properties, or financial condition of the Company (as such business is
presently conducted and as it is proposed to be conducted); or
(n) any agreement or commitment by the Company to do
any of the things described in this Section 2.19.
2.19 Employee Benefit Plans. The Company does not have any
Employee Benefit Plan as defined in the Employee Retirement Income Security Act
of 1974.
2.20 Tax Returns, Payments and Elections. The Company has filed
all tax returns and reports as required by law. These returns and reports are
true and correct in all material respects. The Company has paid all taxes and
other assessments due. The provision for taxes of the Company as shown in the
Financial Statements is adequate for taxes due or accrued as of the date
thereof. The Company has not elected pursuant to the Internal Revenue Code of
1986, as amended (the "Code"), to be treated as a Subchapter S corporation or a
collapsible corporation pursuant to Section 341(f) or Section 1362(a) of the
Code, nor has it made any other elections pursuant to the Code (other than
elections which relate solely to methods of accounting, depreciation or
amortization) which would have a material effect on the Company, its financial
condition, its business as presently conducted or proposed to be conducted or
any of its properties or material assets. The Company has never had any tax
deficiency proposed or assessed against it and has not executed any waiver of
any statute of limitations on the assessment or collection of any tax or
governmental charge. To the Company's knowledge none of its federal income tax
returns and none of its state income or franchise tax or sales or use tax
returns has ever been audited by governmental authorities. Since the date of the
Financial Statements, the Company has made adequate provisions on its books of
account for all taxes, assessments and governmental charges with respect to its
business, properties and operations for such period. The Company has withheld or
collected from each payment made to each of its employees, the amount of all
taxes (including, but not limited to, federal income taxes, Federal Insurance
Contribution Act taxes and Federal Unemployment Tax Act taxes) required to be
withheld or collected therefrom, and has paid the same to the proper tax
receiving officers or authorized depositaries.
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2.21 Insurance. The Company has in full force and effect fire and
casualty insurance policies, with coverage customary for companies similarly
situated to the Company.
2.22 Minute Books. The minute books of the Company made available
to Investor or its counsel as requested, contain a complete summary of all
meetings and actions by consent of directors and stockholders since the time of
incorporation and reflect all transactions referred to in such minutes
accurately in all material respects.
2.23 Labor Agreements and Actions. The Company and its employees
are not bound by or subject to (and none of its assets or properties is bound by
or subject to) any written or oral, express or implied, contract, commitment or
arrangement with any labor union, and no labor union has requested or, to the
knowledge of the Company, has sought to represent any of the employees,
representatives or agents of the Company. There is no strike or other labor
dispute involving the Company pending, or to the knowledge of the Company
threatened, nor is the Company aware of any labor organization activity
involving its employees. The Company is not aware that any officer or key
employee, or that any group of key employees, intends to terminate their
employment with the Company, nor does the Company have a present intention to
terminate the employment of any of the foregoing. The employment of each officer
and employee of the Company is terminable at the will of the Company.
2.24 Employees: Employee Compensation. To its knowledge, the
Company has complied in all material respects with all applicable state and
federal equal employment opportunity and other laws related to employment. To
the Company's knowledge, no employee of the Company is or will be in violation
of any judgment, decree or order, or any term of any employment contract, patent
disclosure agreement or other contract or agreement relating to the relationship
of any such employee with the Company or any other party because of the nature
of the business conducted or to be conducted by the Company or to the
utilization by the employee of his best efforts with respect to such business.
The Company is not party to or bound by any currently effective employment
contract, deferred compensation agreement, bonus plan, incentive plan, profit
sharing plan, retirement agreement, or other employee compensation agreement.
2.25 Real Property Holding Corporation. The Company is not a real
property holding corporation within the meaning of Internal Revenue Code Section
897(c)(2) and any regulations promulgated thereunder.
2.26 Offering. Subject in part to the truth and accuracy of the
Investor's representations set forth in Section 3 of this Agreement, the offer,
sale and issuance of the shares as contemplated by this Agreement are exempt
from the registration requirements of the Act, and will have been registered or
qualified (or are exempt from registration and qualification) under the
registration, permit or qualification requirements of all applicable state
securities laws. Neither the Company nor any authorized agent acting on its
behalf has taken or will take any action hereafter that would cause the loss of
such exemption.
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2.27 Environmental and Safety Laws. To its knowledge, the Company
is not in violation of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and to its knowledge, no material
expenditures are or will be required in order to comply with any such existing
statute, law or regulation.
3. Representations and Warranties of the Investor. The Investor hereby
represents and warrants that:
3.1 Authorization. This Agreement constitutes its valid and
legally binding obligation, enforceable in accordance with its terms. The
Investor represents that it has full power and authority to enter into this
Agreement.
3.2 Purchase Entirely for Own Account. This Agreement is made
with the Investor in reliance upon such Investor's representation to the
Company, which by such Investor's execution of this Agreement such Investor
hereby confirms, that the Shares will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, the Investor further
represents that such Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of the Securities.
3.3 Disclosure of Information. The Investor believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Shares. The Investor further represents that it has had
an opportunity to ask questions and receive answers from the Company regarding
the terms and conditions of the offering of the Shares. The foregoing, however,
does not limit or modify the representations and warranties of the Company in
Section 2 of this Agreement or the right of the Investor to rely thereon.
3.4 Investment Experience. The Investor is an investor in
securities of companies in the development stage and acknowledges that it is
able to fend for itself, and bear the economic risk of its investment and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment in the Shares. If
other than an individual, Investor also represents it has not been organized for
the purpose of acquiring the Shares.
3.5 Accredited Investor. The Investor is an accredited
investor as defined in Rule 501(a) of Regulation D under the Act.
3.6 Restricted Securities. The Investor understands that the
Shares it is purchasing are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances. In this connection, The Investor
represents that it is familiar with Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Act.
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3.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, The Investor further agrees not to
make any disposition of all or any portion of the Shares (or the Conversion
Stock) unless and until:
(a) There is then in effect a Registration Statement
under the Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) Such Investor shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
requested by the Company, such Investor shall have furnished the Company with an
opinion of Investor's corporate counsel or counsel, reasonably satisfactory to
the Company, that such disposition will not require registration of such shares
under the Act.
(c) Notwithstanding the provisions of subsections
(a) and (b) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by an Investor which is a partnership to a partner of
such partnership or a retired partner of such partnership who retires after the
date hereof, or to the estate of any such partner or retired partner or the
transfer by gift, will or intestate succession of any partner to such partner's
spouse or lineal descendants or ancestors or by an Investor which is a
corporation to an Affiliate (as defined under the Act), if the transferee agrees
in writing to be subject to the terms hereof to the same extent as if such
transferee were an original Investor hereunder.
3.8 Legends. It is understood that the certificates evidencing
the Shares (and the Conversion Stock) may bear one or all of the following
legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
144 OF SUCH ACT."
(b) Any legend required by the laws of the State of
California or any other applicable state, including any legend required by the
California Department of Corporations and Sections 417 and 418 of the California
Corporations Code.
4. California Commissioner of Corporations. THE SALE OF THE SECURITIES
THAT IS THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, AND THE ISSUANCE OF
SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION
THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF THE
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100,
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25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO
THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED
UNLESS THE SALE IS SO EXEMPT.
5. Conditions of Investor's Obligations at Closing. The obligations of
the Investor under Section 1.1(b) of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
in writing thereto:
5.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
5.2 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing.
5.3 Compliance Certificate. The President or CEO of the Company
shall deliver to the Investor at the Closing a certificate certifying that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled and stating
that there shall have been no adverse change in the business, affairs,
operations, properties, assets or condition of the Company since September 30,
1997.
5.4 Officer's Certificate. The President, CEO or CFO of the
Company shall deliver to the Investor at the Closing a certificate certifying
that the Certificate of Incorporation and Bylaws of the Company are true and
correct.
5.5 Qualifications. The Commissioner of Corporations of the State
of California shall have issued a permit qualifying the offer and sale of the
Shares and the Conversion Stock to the Investor pursuant to this Agreement, or
such offer and sale shall be exempt from such qualification under the California
Corporate Securities Law of 1968, as amended. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the issuance and
sale of the Shares and the Conversion Stock pursuant to this Agreement shall be
duly obtained and effective as of the Closing. Wilson Sonsini Goodrich & Rosati,
counsel for the Company, will undertake the filing of any such authorizations,
approvals, or permits and will provided copies of any such authorizations,
approvals, or permits to the Investor.
5.6 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Investor and counsel to any of the Investor, and they shall
have received all such counterpart original and certified or other copies of
such documents as they may reasonably request.
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5.7 Certificate of Designations. The Certificate of
Designations in the form attached hereto as Exhibit A shall have been approved
by the Company's Board of Directors and filed with the Delaware Secretary of
State.
5.8 Rights Agreement. The Company and the Investor shall
have entered into the Rights Agreement in the form attached hereto as Exhibit C.
5.9 Opinion of Company Counsel. The Investor shall have
received from Wilson Sonsini Goodrich & Rosati, counsel for the Company, an
opinion, dated as of the Closing, in the form attached hereto as Exhibit D.
5.10 Consents, Permits, and Waivers. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement and the Rights
Agreements (except for such as may be properly obtained subsequent to the
Closing).
6. Conditions of the Company's Obligations at Closing. The
obligations of the Company to the Investor under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions,
the waiver of which shall not be effective unless consented to in writing by the
Company:
6.1 Representations and Warranties. The representations and
warranties of the Investor contained in Section 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing.
6.2 Payment of Purchase Price. The Investor shall have
delivered the purchase price specified in Section 1.1(b).
6.3 California Qualification. The Commissioner of
Corporations of the State of California shall have issued a permit qualifying
the offer and sale to the Investor of the Shares and the Conversion Stock or
such offer and sale shall be exempt from such qualification under the California
Corporate Securities Law of 1968, as amended. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the issuance and
sale of the Shares and Conversion Stock pursuant to this Agreement shall be duly
obtained and effective as of the Closing.
6.4 Certificate of Designations. The Certificate of
Designations attached hereto as Exhibit A shall have been accepted for filing by
the Delaware Secretary of State.
6.5 Rights Agreement. The Company and the Investor shall
have entered into the Rights Agreement in the form attached hereto as Exhibit C.
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6.6 Pfizer, Inc. Agreement. The Company and Pfizer, Inc.
shall have entered into the Collaborative Research Agreement.
7. Covenants of the Company.
7.1 Delivery of Financial Statements. The Company shall
deliver to the Investor:
(a) as soon as practicable, but in any event within
one hundred (100) days after the end of each fiscal year of the Company
commencing with the fiscal year ending December 31, 1997, a balance sheet, and
statements of operations and cash flow for such fiscal year. Such year-end
financial reports to be in reasonable detail and shown compared to the prior
fiscal year, prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied and consistent with the requirements of
Regulation S-X of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), and audited and certified by independent public accountants of
nationally recognized standing selected by the Company;
(b) within fifty (50) days of the end of each
quarter, and until a public offering of Common Stock of the Company, a
management letter, describing the results of operations and liquidity and
capital resources, and an unaudited statement of operations and balance sheet
and cash flow for and as of the end of such quarter, in reasonable detail and
prepared in accordance with GAAP consistently applied, subject to year end audit
adjustments and the absence of footnotes;
(c) with respect to the financial statements called
for in subsection (b) of this Section 7.1, an instrument executed by the Chief
Financial Officer, President or Chairman of the Company and certifying that such
financials were prepared in accordance with GAAP consistently applied with prior
practice for earlier periods and fairly present the financial condition of the
Company and its results of operation for the period specified, subject to
year-end audit adjustments and the absence of footnotes;
7.2 Inspection. The Company shall permit the Investor at such
Investor's expense to visit and inspect the Company's properties, to examine its
books of account and records and to discuss the Company's affairs, finances and
accounts with its officers, all at such reasonable times as may be requested in
writing by the Investor; provided, however, that the Company shall not be
obligated pursuant to this Section 7.2 to provide access to any information
which it reasonably considers to be a trade secret, proprietary information or
other confidential information.
7.3 Termination of Covenants. The covenants set forth in Sections
7.1 and 7.2 shall terminate and be of no further force or effect when the sale
of securities pursuant to a registration statement filed by the Company under
the Act in connection with the firm commitment underwritten offering of its
securities to the general public is consummated at a per share price not less
than $9.00 (as adjusted for any stock dividends, combinations, splits,
recapitalizations and the like with respect to such shares) with aggregate
proceeds to the Company of not less than $15.0 million (after deduction of
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underwriters commissions and expenses) or when the Company first becomes subject
to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange
Act, whichever event shall first occur.
8. Miscellaneous.
8.1 Survival of Warranties. The warranties, representations and
covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investor or the Company.
8.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereto or in the case of the
Company on the first page of this Agreement, or at such other address as such
party may designate by ten (10) days' advance written notice to the other
parties.
8.7 Finder's Fee. Each party represents that it neither is nor
will be obligated for any finders' fee or commission in connection with this
transaction. The Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finders' fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Investor or any of its officers, partners,
employees, or representatives is responsible. The Company agrees to indemnify
and hold harmless the Investor from any liability for any commission or
compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Company or
any of its officers, employees or representatives is responsible.
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8.8 Expenses. The Company shall pay all costs and expenses that
it incurs with respect to the negotiation, execution, delivery and performance
of this Agreement and the Rights Agreement. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the Certificate
of Designations or the Rights Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
8.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
at least a majority of the Securities. Any amendment or waiver effected in
accordance with this Section shall be binding upon each holder of any securities
purchased under this Agreement at the time outstanding (including securities
into which such securities are convertible), each future holder of all such
securities, and the Company; provided, however, that no condition set forth in
Section 5 hereof may be waived with respect to any Investor who does not consent
thereto.
8.10 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
8.11 Aggregation of Stock. All Shares held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
8.12 Entire Agreement. This Agreement and the documents referred
to herein constitute the entire agreement among the parties and no party shall
be liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ABGENIX, INC.
By:
-----------------------------------------
Kurt Leutzinger, Chief Financial Officer
PFIZER, INC.
By:
-----------------------------------------
Title:
--------------------------------------
ABGENIX, INC. SERIES C PREFERRED STOCK
PURCHASE AGREEMENT SIGNATURE PAGE.
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<PAGE> 1
EXHIBIT 10.29
SCHERING-PLOUGH
RESEARCH INSTITUTE
COLLABORATIVE RESEARCH AGREEMENT
<PAGE> 2
COLLABORATIVE RESEARCH AGREEMENT
This Collaborative Research Agreement (the "Agreement"), effective as of
January 28, 1998 (the "Effective Date") is made by and between Abgenix, Inc., a
Delaware corporation having its principal place of business at 7601 Dumbarton
Circle, Fremont, California 94555 ("ABX") and Schering-Plough Research
Institute, a Delaware corporation having its principal place of business at 2015
Galloping Hill Road, Kenilworth, New Jersey 07033 ("SPRI").
WHEREAS SPRI and ABX are interested in conducting research regarding
antibodies derived from XenoMouse(TM) Animals (described below) that bind to
[*], as set forth below;
NOW THEREFORE, in consideration of the mutual promises contained in this
Agreement, the parties agree as follows:
1. DEFINITIONS For purposes of this Agreement, the following terms shall have
the meanings set forth below:
1.1 "Antibody" shall mean a composition comprising a whole antibody or
fragment thereof, said antibody or fragment having been derived in whole or part
from immunization of the XenoMouse Animals with the Target Antigen, or having
been derived from nucleotide sequences encoding, or amino acid sequences of,
such an antibody or fragment.
1.2 "Research" shall mean the research activities set forth in Exhibit A.
1.3 "Target Antigen" shall mean [*].
1.4 "XenoMouse Animals" shall mean one or more transgenic mice available
for use by ABX that produce human antibodies when immunized with antigens.
2. RESEARCH PROGRAM
2.1 Research Program Activities. Subject to the terms and conditions set
forth in this Agreement, the parties shall conduct the Research as set forth in
Exhibit A on a collaborative basis with the goal of generating and studying
Antibodies that bind to the Target Antigen. Each party shall use commercially
reasonable efforts to conduct the Research in accordance with Exhibit A within
the time schedules contemplated therein. The parties will confer at mutually
agreed times, no less than [*] in person or by telephonic conference call, to
discuss the status of the research project pursuant to Exhibit A. The obligation
of each party to use commercially reasonable efforts to conduct the
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE> 3
Research in accordance with Exhibit A is expressly conditioned upon the
performance by each party of its obligations to the other party under this
Agreement, including but not limited to, the obligations set forth in Exhibit A.
2.2 SPRI Responsibilities. Promptly following execution of this Agreement,
SPRI will provide to ABX reasonable quantities of the materials set forth in
Exhibit A. Upon request by ABX, SPRI agrees to provide reasonable assistance to
ABX in performance of the Research. SPRI shall provide a reasonably detailed
report to ABX showing the data generated pursuant to item I of Exhibit A,
promptly after completion of the tasks set forth in item I of Exhibit A.
2.3 ABX Responsibilities. After receiving Target Antigen materials from
SPRI for immunization, ABX shall use commercially reasonable efforts to immunize
XenoMouse Animals with the Target Antigen [*] and in accordance with Exhibit A
during the term of this Agreement. ABX shall provide a reasonably detailed
report to SPRI showing the data generated pursuant to items E and F of Exhibit
A, promptly after completion of the tasks set forth in items E and F of Exhibit
A.
2.4 Payments. SPRI shall pay to ABX [*] Such payments shall be
nonrefundable and noncreditable. It is understood that if SPRI enters into a
definitive Research, Option and License Agreement, it will make all the payments
described under this Section 2.4 regardless of whether or not the goal described
in Exhibit A was met. Each of SPRI and ABX shall be solely responsible for its
own out-of-pocket costs and disbursements incurred, and for providing the
necessary facilities, supplies (except for materials to be provided pursuant to
Exhibit A), personnel and other resources necessary in the performance of the
Research and its obligations under this Agreement.
2.5 Exclusivity. In consideration of the payment to ABX hereunder, during
the term of this Agreement, ABX shall not actively solicit or enter into any
agreement with a third party pursuant to which ABX would convey or grant rights
to such third party regarding [*] In addition, during the term of this
Agreement, ABX shall not offer the [*] to any third party for purposes of
discussing or evaluating a possible business relationship relating to such
Antibodies, nor enter into any agreements which would otherwise diminish the
rights granted to SPRI under this Agreement, without the prior written consent
of SPRI. ABX shall not, without SPRI's written consent, use for the benefit of
any third party, or provide to any third party, the XenoMouse Animals immunized
in the course of performing the Research or any materials derived from such
XenoMouse Animals in the course of performing the Research.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE> 4
2.6 Material Transfer Terms.
2.6.1 Transfer by SPRI. SPRI agrees to provide the materials
required to be provided to ABX pursuant to the Research (the "SPRI Materials")
solely upon the following terms and conditions:
(a) All SPRI Materials provided to ABX by SPRI under this Agreement
shall remain the property of SPRI, and the transfer of physical possession of
any such materials to, and the physical possession of any such materials by, ABX
shall not be (nor be construed as) a sale, lease, offer to sell or lease, or
other transfer of title of such materials to ABX;
(b) All SPRI Materials shall remain in the control of ABX and shall
not be transferred to any other party, and ABX shall use the SPRI Materials only
for purposes of performing the Research and not for any other purpose; and
(c) ABX agrees to use the SPRI Materials in compliance with all
applicable national, state, and local laws and regulations, including all
applicable National Institutes of Health guidelines, and agrees that such
materials will not be used in humans. ABX acknowledges that the SPRI Materials
are experimental in nature and may have unknown characteristics and therefore
agrees to use prudence and reasonable care in the use, handling, storage,
transportation, disposition and containment of SPRI Materials and all
derivatives thereof.
2.6.2 Transfer by ABX. ABX agrees to provide the XenoMouse
Materials (as defined below) required to be provided to SPRI pursuant to the
Research solely upon the following terms and conditions:
(a) All materials derived in whole or part from the XenoMouse Animals, including
without limitation all Antibodies to the Target Antigen and all [*] derived from
XenoMouse Animals under this Agreement (collectively, "XenoMouse Materials"),
shall be the property of ABX, and the transfer of physical possession of any
such materials to, and the physical possession of any such materials by, SPRI
shall not be (nor be construed as) a sale, lease, offer to sell or lease, or
other transfer of title of such materials to SPRI;
(b) All XenoMouse Materials shall remain in the control of SPRI and
shall not be transferred to any other party, and SPRI shall use the XenoMouse
Materials only for purposes of performing the Research and not for any other
purpose; and
(c) SPRI agrees to use the XenoMouse Materials in compliance with
all applicable national, state, and local laws and regulations, including all
applicable National Institutes of Health guidelines, and agrees that such
materials will not be used in humans. SPRI acknowledges that the XenoMouse
Animals, and all materials derived in whole or part from the XenoMouse Animals,
are experimental in nature and may have unknown
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE> 5
characteristics and therefore agrees to use prudence and reasonable care in the
use, handling, storage, transportation, disposition and containment of XenoMouse
Materials and all derivatives thereof.
2.7 Research License. Each party hereby grants the other party a
non-exclusive license to perform the Research activities set forth in Exhibit A
under all patents and patent applications owned or controlled by the granting
party that are necessary to perform such activities.
3. RESEARCH AND LICENSE OPTION
During the period commencing on the Effective Date and ending on the earlier of
(i) six (6) weeks after the Completion of Research described in Exhibit A but no
later than eight (8) months following the Effective Date or (ii) termination of
this agreement (the "Option Period"), SPRI, through a corporate affiliate, shall
have the exclusive option to enter into a written definitive agreement
("Research, Option and License Agreement") that will provide for the additional
research described in Exhibit B and an option to acquire a worldwide, exclusive
(even as to ABX) license, including the right to sublicense, to develop, make,
have made, use, export and import [*] derived from XenoMouse animals under this
Agreement in order to develop, make, have made, use, sell, offer for sale,
export and import [*] generated under this Agreement upon mutually agreeable
terms and conditions to be set forth in the Research, Option and License
Agreement. It is understood that any such license will be subject to
non-exclusive grant of rights to GenPharm International Inc. ("GenPharm") under
that certain Cross License Agreement effective as of March 26, 1997 by and among
Abgenix, GenPharm and other parties named therein. The parties agree to
negotiate the terms of the Research, Option and License Agreement in good faith
during the Option Period, it being understood that, in addition to other key
terms to be negotiated by the parties, the Research, Option and License
Agreement shall provide for further research reimbursement fees, license fees,
milestone payments, royalty and other key financial terms set forth on the
attached term sheet as Exhibit C; and other customary terms and conditions for
commercial agreements of this type, including, but not limited to, provisions
relating to intellectual property, confidentiality and publication,
representations and warranties of each party, diligence, indemnification, and
reporting.
4. CONFIDENTIALITY
4.1 Confidentiality. During the term of this Agreement and for a period of
ten (10) years following the expiration or termination of this Agreement ABX and
SPRI shall keep completely confidential and shall not, without the prior written
consent of the other party, publish or otherwise disclose, and shall not use for
any purpose other than conducting the Research, any information furnished to it
by the other party or generated pursuant to this Agreement, except to the extent
that such information:
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE> 6
(a) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving party;
(c) became generally available to the public or otherwise part of
the public domain after its disclosure and other than through acts or omissions
of the receiving party;
(d) was subsequently lawfully disclosed to the receiving party by a
third party under no obligation of confidentiality; or
(e) was independently developed by the receiving party without the
use of such confidential information received from the disclosing party and such
independent development can be documented by contemporaneous written records of
the receiving party kept in the ordinary course of business.
4.2 Disclosure Required by Law. Notwithstanding the foregoing Section 4.1,
either party may disclose the other party's confidential information to the
extent such disclosure is required by law, regulation, rule act of order or any
governmental authority or agency to be disclosed provided that if a party is so
required to make any such disclosure of the other party's secret or confidential
information, other than pursuant to a confidentiality agreement or protective
order, it will give reasonable advance notice to the other party of such
disclosure requirement and will use efforts consistent with prudent business
judgment to secure confidential treatment of such information prior to its
disclosure (whether through protective orders or confidentiality agreements or
otherwise) and thereafter the receiving party uses reasonable efforts to
disclose to the requesting entity only the minimum confidential information
required to be disclosed in order to comply with the request, whether or not a
protective order or other similar order is obtained by the disclosing party.
4.3 No Publicity. A party may not use the name of the other party, or any
of its affiliates, in any publicity or advertising and may not issue a press
release or otherwise publicize or disclose any information related to the
existence of this Agreement or the terms or conditions hereof, without the prior
written consent of the other party, such consent not to be unreasonably
withheld. The parties shall agree on a form of initial press release (Exhibit D
attached hereto) that may be used by either party to describe this Agreement
and either party may subsequently release any information contained in such
press release without consultation with or consent of the other. Nothing in the
foregoing, however, shall prohibit a party from making such disclosures to the
extent deemed necessary under applicable federal or state securities laws or any
rule or regulation of any nationally recognized securities exchange. In such
event, however, the disclosing party shall use good faith efforts to consult
with the other party prior to such disclosure and, where applicable, shall
request confidential treatment to the extent available. Nothing in
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<PAGE> 7
the foregoing, however, shall prohibit a party from making such disclosures to
professional advisors, including, but not limited to, attorneys, accountants and
bankers under customary confidentiality conditions. In the event of disclosure
to a banker, however, the disclosing party shall notify the other party of such
disclosure.
5. INDEMNIFICATION
5.1 SPRI. SPRI agrees to indemnify and hold ABX and its directors,
officers, employees and agents harmless from and against any claims, damages,
liabilities or actions (including reasonable attorneys' fees and other expenses
of litigation) relating to or arising from (i) ABX's use of materials provided
by SPRI in performing the Research; (ii) SPRI's use of XenoMouse Materials; or
(iii) the breach by SPRI of any representation or warranty contained in this
Agreement; provided, however, that SPRI shall not be obligated to indemnify or
hold harmless ABX to the extent that such claims arise from the negligence or
willful misconduct of ABX
5.2 ABX. ABX agrees to indemnify and hold SPRI and its directors,
officers, employees and agents harmless from and against any claims, damages,
liabilities or actions (including reasonable attorneys' fees and other expenses
of litigation) arising from the negligence or willful misconduct of ABX or the
breach by ABX of any representation or warranty contained in this Agreement;
provided, however, that ABX shall not be obligated to indemnify or hold harmless
SPRI to the extent that such claims arise from the negligence or willful
misconduct of SPRI.
5.3 Limitation of Liability. With respect to any claim by one party
against the other arising out of the performance or failure of performance of
the other party under this Agreement, the parties expressly agree that the
liability of such party to the other party for such breach shall be limited
under this Agreement or otherwise at law or equity to direct damages only and in
no event shall a party be liable for: (i) punitive, exemplary or consequential
damages, or (ii) the cost of procurement of substitute goods, technology or
services.
6. TERM; TERMINATION
6.1 Term. Subject to the next sentence this Agreement shall commence on
the Effective Date and, unless earlier terminated by mutual agreement of the
parties, shall continue in effect until six (6) weeks after the completion of
Research pursuant to Exhibit A but no later than eight (8) months after the
Effective Date. Notwithstanding anything contained herein to the contrary, at
any time prior to the execution of the Research, Option and License Agreement
SPRI shall have the unilateral right to terminate this Agreement, with or
without cause, by giving thirty (30) days advance written notice to ABX. In such
event, and provided that ABX performed the activities assigned to it in Exhibit
A until the time of receipt of the written notice of termination, SPRI shall pay
ABX the Research
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<PAGE> 8
payments described in section 2.4 of this Agreement regardless of whether or not
the Research pursuant to Exhibit A was completed. The expiration of this
Agreement shall not affect the rights and liabilities of the parties accrued
prior to such expiration. Articles 4, 5, and 8 and Section 2.6 shall survive any
expiration or termination of this Agreement.
6.2 Destruction of Materials. Upon the expiration or termination of this
Agreement, SPRI and ABX shall destroy the SPRI Materials and the ABX Materials
and any XenoMouse Animals that have been immunized with the Target Antigen
unless otherwise mutually agreed by the parties, provided that each party's
legal counsel may retain one copy of confidential information (other than
biological materials) furnished by the other party pursuant to this Agreement in
a secure location for the sole purpose of identification such party's
obligations under the confidentiality provisions of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of Each Party. Each of ABX and SPRI
hereby represents, warrants and convenants to the other party hereto as follows:
(a) it is a corporation duly organized and validly existing under
the laws of the state or other jurisdiction of its incorporation or formation;
(b) the execution, delivery and performance of this Agreement by
such party has been duly authorized by all requisite corporate action;
(c) it has the power and authority to execute and deliver this
Agreement and to perform its obligations hereunder; and
(d) the execution, delivery, and performance by such party of this
Agreement and its compliance with the terms and provisions hereof does not and
will not conflict with or result in a breach of any of the terms and provisions
of, or constitute a default under, (i) a loan agreement, guaranty, financing
agreement, or other agreement or instrument binding or affecting it or its
property; (ii) the provisions of its charter documents or bylaws; or (iii) any
order, writ, injunction or decree or any court or governmental authority entered
against it or by which any of its property is bound.
7.2 ABX's Representations. ABX hereby represents, warrants and
convenants to SPRI as follows:
(a) to the best of its knowledge, Abgenix has sufficient right,
title and interest in and to the XenoMouse Animals, and to [*] derived from the
XenoMouse Animals, and to Antibodies to the Target Antigen derived from the
XenoMouse Animals to perform the Research set forth herein, to grant the
Research License set forth in section 2.7, and to enter into the Research,
Option and License
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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<PAGE> 9
Agreement on terms to be negotiated by the parties;
(b) it will use diligent efforts not to diminish the rights granted
to SPRI hereunder, including, without limitation, by not committing or
permitting any acts or omissions which would cause the breach of any agreements
between itself and third parties which provide for intellectual property rights
applicable to the development, manufacture, use or sale of Antibodies to the
Target Antigen and all [*] derived from XenoMouse Animals and in connection
therewith. ABX agrees to provide SPRI promptly with notice of any alleged breach
and ABX is in compliance in all material respects with any such agreements with
third parties.
7.3 SPRI's Representations. SPRI hereby represents, warrants and
convenants to ABX that it has not entered into any agreement with any third
party that would prohibit it from entering into the definitive Research, Option
and License Agreement.
7.4 Continuing Representations. The representations and warranties of each
party contained in Sections 7.1, 7.2 and 7.3 above shall survive the execution
of this Agreement and shall remain true and correct after the date hereof with
the same effect as if made as of the date hereof.
7.5 No Inconsistent Agreement. As of the Effective Date neither party has
in effect, and during the term of this Agreement neither party shall enter into,
any oral or written agreement or arrangement that would be inconsistent with its
obligations under this Agreement.
8. MISCELLANEOUS PROVISIONS
8.1 Governing Laws. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, without regard to conflicts
of law principles.
8.2 Assignments. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated, in whole or part, by either party
without the prior written consent of the other, which consent shall not be
unreasonably withheld; provided, however, that either party may, without the
written consent of the other, assign its rights and delegate its obligations
hereunder to (i) any entity to which it has acquired all or substantially all of
the business or assets of the assigning party, or (ii) any successor corporation
resulting from any merger or consolidation with another corporation. Any
purported assignment in violation or the preceding sentence shall be void. Any
permitted assignee shall assume all obligations of its assignor under this
Agreement.
8.3 No Warranties. EACH OF SPRI AND ABX ACKNOWLEDGE AND AGREE THAT ANY AND
ALL MATERIALS PROVIDED BY ONE PARTY TO THE OTHER PURSUANT TO THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
8
<PAGE> 10
ALL ANTIBODIES AND OTHER MATERIALS DERIVED IN WHOLE OR PART FROM XENOMOUSE
ANIMALS PROVIDED TO SPRI PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS." EACH
OF SPRI AND ABX MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND
REGARDING ANY MATERIALS PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO THE XENOMOUSE ANIMALS OR ANTIBODIES OR OTHER MATERIALS DERIVED IN
WHOLE OR PART FROM THE XENOMOUSE ANIMALS, WHETHER EXPRESS OR IMPLIED, AND EACH
OF SPRI AND ABX SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
8.4 Independent Contractors. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be agents,
partners or joint venturers of the others for any purpose as a result of this
Agreement or the transactions contemplated thereby. Neither ABX nor SPRI shall
have the authority to make 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 party to do so.
8.5 Notices. All requests and notices required or permitted to be given to
the parties hereto shall be given in writing, shall expressly reference the
section(s) of this Agreement to which they pertain, and shall be deemed to have
been properly given if delivered in person or when received if mailed by first
class certified mail to the other party at the appropriate address as set forth
below or to such other addresses as may hereinafter be designated in writing by
the parties.
SPRI: Schering-Plough Research Institute
2015 Galloping Hill Road
Kenilworth, New Jersey 07033
Attn: Dr. Francis Cuss
ABX: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, California 94555
Attn: President
8.6 No Implied Licenses. Only licenses and rights granted expressly herein
shall be of legal force and effect. No license or other right shall be created
hereunder by implication, estoppel or otherwise. Under no circumstances shall a
party hereto, as a result of this Agreement, obtain any ownership interest in,
or any other right or license to, any existing or future technology, know-how,
patents, patent applications or products of the other party except as expressly
provided in this Agreement.
8.7 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this
9
<PAGE> 11
Agreement shall continue in full force and effect without said provision and the
parties shall discuss in good faith appropriate revised arrangements.
8.8 No Consequential Damages. IN NO EVENT SHALL A PARTY HERETO BE LIABLE
FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT
OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING WITHOUT LIMITATION LOST
PROFITS, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES.
8.9 Complete Agreement. This Agreement constitutes the entire agreement,
written and oral, between the parties with respect to the subject matter hereof,
and supersedes all prior agreements between the parties respecting the subject
matter hereof, whether written or oral, expressed or implied. This Agreement can
be modified or amended in a writing signed by the parties, and the rights under
this Agreement can be waived only in a writing signed by the party to be
charged.
8.10 Dispute Resolution
8.10.1 Cooperation. In the event that SPRI and ABX are unable,
after exercising good faith efforts, to reach agreement on an issue relating to
this Agreement, then upon written notice to the other party the issue shall be
referred to SPRI's Executive Vice President - Discovery Research and the
President of ABX, or their designees with similar authority, who shall meet and
use good faith efforts to reach agreement on the issue (the "Dispute"). In the
event the representatives of SPRI and ABX are unable to reach agreement on the
Dispute in such meeting, then the parties shall have the right to submit the
Dispute to binding arbitration in accordance with the provisions of Section
8.10.2 by providing written notice to the other party within two (2) weeks after
such meeting.
8.10.2 Arbitration. All Disputes arising in connection with this
Agreement shall be finally settled by binding arbitration conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. The arbitration shall be held in San Francisco,
California if the Dispute was referred to arbitration by SPRI and in New York,
New York if the Dispute was referred to arbitration by ABX, and the arbitrator
shall be an independent expert with a background suitable for the matters in
dispute. The cost of the arbitration, including administrative and arbitrator's
fees, shall be shared equally by the parties. Each party shall bear its own
costs and attorneys' and witnesses' fees. The prevailing party in any
arbitration, as determined by the arbitrator, shall be entitled to an award
against the other party in the amount of the prevailing party's costs and
reasonable attorneys' fees. A disputed or suspended performance pending the
resolution of the arbitration shall be completed within thirty (30) days
following the final decision of the arbitrator. Any arbitration under this
section 8.10.2 shall be completed within six (6) months from the filing of
notice of a request for such arbitration.
10
<PAGE> 12
8.11 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and together shall be deemed to be one
same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers as of the day and year first above
written.
ABGENIX, INC. SCHERING-PLOUGH RESEARCH INSTITUTE
By: /s/ R. SCOTT GREER By: /s/ JONATHAN SPICEHANDLER
------------------------------ -----------------------------------
Printed Name: R. Scott Greer Printed Name: Jonathan Spicehandler
-------------------- -------------------------
Title: CEO Title: President
--------------------------- --------------------------------
Date: January 28, 1998 Date: January 30, 1998
---------------------------- ---------------------------------
11
<PAGE> 13
EXHIBIT A
[ * ]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
12
<PAGE> 14
EXHIBIT B
[ * ]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
13
<PAGE> 15
EXHIBIT C
[ * ]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
14
<PAGE> 16
EXHIBIT D
[ABGENIX LOGO]
Contact: Kurt Leutzinger
Vice President and Chief
Financial Officer
510-608-6575
ABGENIX SIGNS AGREEMENT WITH SCHERING-PLOUGH
FREMONT, Calif., January XX, 1998 -- Abgenix, Inc., a subsidiary of Cell
Genesys, Inc. (Nasdaq: CEGE), announced today that it has signed a collaborative
research agreement with Schering-Plough Research Institute (SPRI), the
pharmaceutical research and development arm of Schering-Plough Corporation
(NYSE: SGP). Under the agreement, Abgenix, will use its XenoMouse(TM) technology
to generate fully human monoclonal antibodies to an undisclosed antigen target
for SPRI. The agreement provides SPRI with an option to enter into a research
and license agreement that would provide Abgenix with additional research
payments, milestone payments and royalties on future product sales by
Schering-Plough.
"We are pleased to be collaborating with Schering-Plough Corporation, one of the
world's leading pharmaceutical companies," stated R. Scott Greer, president and
chief executive officer of Abgenix. "This collaboration, along with the
company's recently announced deal with Pfizer Inc., reflects the growing
interest in our XenoMouse(TM) technology."
Abgenix has developed novel strains of transgenic mice (XenoMouse(TM)) that are
capable of quickly generating high affinity, fully human antibodies to
essentially any target, including human antigens. The company currently has
three antibody products in development. ABX-CBL is in a confirmatory Phase II
trial for steroid-resistant graft versus host disease (GVHD). The antibody
targets the specific cells active in an unwanted immune response, such as occurs
in GVHD, kidney transplant rejection, rheumatoid arthritis and psoriasis.
ABX-IL8 is a fully human monoclonal antibody targeting inflammation that is
expected to begin a Phase I clinical trial this quarter for moderate to severe
psoriasis. ABX-EGF is a fully human monoclonal antibody in preclinical
development that may arrest the growth of cancer cells.
- more -
<PAGE> 17
Statements made in this press release about Abgenix's and Cell Genesys' product
development activities, clinical trials, product pipelines, corporate
partnerships and patent portfolio, other than statements of historical fact, are
forward looking statements and are subject to a number of uncertainties that
could cause actual results to differ materially from the statements made,
including risks associated with the success of clinical trials, research and
product development programs, the regulatory approval process, competitive
products and the extent and breadth of Cell Genesys and its subsidiary's patent
portfolio. Please see Cell Genesys' Form 10-K/A dated April 30, 1997 for
information about risks associated with clinical trials and product development
programs and other risks which may affect Cell Genesys and its subsidiary.
###
[1/XX/98]
<PAGE> 1
EXHIBIT 10.32
CONFIDENTIAL TREATMENT REQUESTED BY ABGENIX, INC.
EXCLUSIVE WORLDWIDE PRODUCT LICENSE
THIS PRODUCT LICENSE AGREEMENT (the "Agreement") effective the ____ day
of November, 1997, is made by and between XENOTECH, L.P., a California limited
partnership ("XT"), and ABGENIX, INC., a Delaware corporation ("Licensee").
RECITALS
XT desires to grant to Licensee and Licensee desires to acquire from XT
an exclusive worldwide license or sublicense, as the case may be, under the
Licensed Technology to commercialize Products, on the terms and conditions
herein.
NOW, THEREFORE, for and in consideration of the covenants, conditions,
and undertakings hereinafter set forth, it is agreed by and between the parties
as follows:
1. DEFINITIONS.
For purposes of this Agreement, the terms set forth in this Article
shall have the meanings set forth below.
1.1 "ABX" shall mean Abgenix, Inc.
1.2 "Affiliate" shall mean any entity which controls, is
controlled by or is under common control with any one of ABX, JTI or XT. An
entity shall be regarded as in control of another entity if it owns or controls
at least fifty percent (50%) of the shares of the subject entity entitled to
vote in the election of directors (or, in the case of an entity that is not a
corporation, for the election of the corresponding managing authority);
provided, however, XT shall not be an Affiliate of ABX or JTI under this
Agreement and XT shall not be considered controlled by ABX or JTI for purposes
of determining Affiliates of ABX or JTI.
1.3 "Antibody" shall mean a composition comprising a whole
antibody or a fragment thereof, said antibody or fragment having been derived
from the Licensed Technology and/or generated from the Mice or the Future
Generation Mice or having been derived from nucleotide sequences encoding, or
amino acid sequences of, such an antibody or fragment.
1.4 "Antibody Product" shall mean any product comprising an
Antibody or Genetic Material encoding an Antibody wherein, in respect of each
Antibody Product, said Genetic Material does not encode multiple Antibodies.
1.5 "Antibody-Secreting Cell" shall mean a cell that secretes an
Antibody, except where such cell is part of a mammal.
1.6 "Antigen Technology" shall mean (i) all U.S. patent
applications and patents listed on Schedule 1 and patents issuing on such patent
applications owned by or licensed to XT
<PAGE> 2
which relate to the Product Antigen, in each case to the extent XT has the right
to license or sublicense the same; (ii) any continuations, divisionals,
reexaminations, reissues or extensions of any of (i) above; (iii) any foreign
counterparts issued or issuing on any of (i) or (ii) above; and (iv) materials
as set forth in Schedule 1.
1.7 "CGI" shall mean Cell Genesys, Inc.
1.8 "Effective Date" shall mean the date this Agreement is
executed by XT and Licensee.
1.9 "Future Generation Mice" shall have the meaning defined in
the Master Research License and Option Agreement, as amended.
1.10 "Genetic Material" shall mean a nucleotide sequence,
including DNA, RNA, and complementary and reverse complementary nucleotide
sequences thereto, whether coding or noncoding and whether intact or a fragment.
1.11 "GenPharm Cross License" shall mean that certain Cross
License Agreement, effective as of March 26, 1997, entered into by and among the
parties, GenPharm International, Inc. ("GenPharm") and the other parties named
therein, as the same may be amended from time to time.
1.12 "IND" shall mean an Investigational New Drug Exemption for a
Product, as defined in the U.S. Food, Drug and Cosmetic Act and the regulations
promulgated thereunder, or its non-U.S. equivalent.
1.13 "JTI" shall mean Japan Tobacco Inc.
1.14 "License Fee" shall have the meaning set forth in Article 3
hereof.
1.15 "Licensed Field" shall mean all human medical uses.
1.16 "Licensed Technology" shall mean the Antigen Technology, the
XenoMouse Technology, and XT-Controlled Rights.
1.17 "Master Research License and Option Agreement" shall mean
that certain Master Research License and Option Agreement entered into by CGI,
JTI and XT as of June 28, 1996 (and subsequently assigned by CGI to ABX), as it
may be amended.
1.18 "Mice" shall have the meaning defined in the Master Research
License and Option Agreement, as amended.
1.19 "Net Sales" shall mean the gross sales price charged by
Licensee or its Affiliates and Sublicensees for sales of Product to
non-Affiliate customers, less: (i) normal and customary rebates, cash and trade
discounts, and credits for returns and allowances, (ii) sales
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<PAGE> 3
consumption or other excise taxes or duties imposed upon and paid by Licensee
and its Affiliates or Subsidiaries with respect to such sales, and (iii)
reasonable reserves for uncollectible accounts, as reflected in financial
statements of Licensee and its Affiliates or Sublicensees, to the extent such
accounts are not actually collected. "Net Sales" for [***] shall mean [***] of
Gross Sales, where Gross Sales shall mean the [***]. Notwithstanding the
foregoing, Gross Sales shall include [***], but notwithstanding any of the
foregoing, shall not include [***]. Notwithstanding the foregoing, "Net Sales"
for Universal Donor Cell Products shall be [***] of Gross Sales.
1.20 "Product" and "Products" shall mean one or more Antibody
Products which incorporate (i) an Antibody which binds to the Product Antigen or
(ii) Genetic Material encoding such an Antibody wherein said Genetic Material
does not encode multiple antibodies.
1.21 "Product Antigen" shall mean Epidermal Growth Factor
Receptor (EGFR).
1.22 "Sublicensee" shall mean a third party that is not an
Affiliate (provided, however, that CGI may be a Sublicensee of ABX, whether or
not CGI is an Affiliate of ABX) to whom Licensee has granted a sublicense under
the Licensed Technology to make, use and/or sell Products to the extent of the
rights of Licensee therein. "Sublicensee" shall also include a third party to
whom Licensee has granted the right to distribute Products under the Licensed
Technology to the extent of the rights of Licensee therein, provided that such
third party is responsible for the marketing and promotion of Products within
the applicable country.
1.23 "Territory" shall mean all the countries of the world.
1.24 "Transgenic Product" shall mean any product constituting (i)
Mice or Future Generation Mice, (ii) Genetic Material from Mice or Future
Generation Mice, or (iii) an Antibody-Secreting Cell.
1.25 "Universal Receptor Product" shall mean a substance that is
developed utilizing both (i) an Antibody and (ii) Universal Receptor
Technology.
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
-3-
<PAGE> 4
1.26 "Universal Receptor Technology" shall mean technology for
universal receptors [***]. As used herein: (i) "universal receptor" shall mean a
receptor [***].
1.27 "Valid Claim" shall mean a claim of a pending or issued, and
unexpired patent included within the Licensed Technology, which has not been
held unenforceable, unpatentable or invalid by a court or other governmental
agency of competent jurisdiction, and which has not been admitted to be invalid
or unenforceable through reissue, disclaimer or otherwise.
1.28 "XenoMouse Technology" shall mean (i) all U.S. patent
applications and patents listed on Schedule 2 and patents issuing on such
applications; (ii) any continuations, divisionals, reexaminations, reissues or
extensions of any of (i) above; (iii) any foreign counterparts issued or issuing
on any of (i) or (ii) above; and (iv) the Mice (as such term is defined in the
Master Research License and Option Agreement) and other materials as set forth
on Schedule 2.
1.29 "XT-Controlled Rights" shall mean all rights to patents or
technology that are licensed to XT pursuant to the agreements listed on Schedule
4 or any other license or similar agreement granting XT rights to patents or
technology (each such agreement an "XT In-License"), to the extent that XT has
the right under the terms of the applicable XT In-License to further license or
sublicense such rights during the Term of this Agreement.
1.30 "XT In-License" shall have the meaning set forth in Section
1.29 above.
2. LICENSE GRANT; USE OF MICE BY THIRD PARTIES.
2.1 Subject to the terms and conditions of this Agreement, XT
hereby grants to Licensee an exclusive license or sublicense, as the case may
be, under the Licensed Technology, to make and have made Products anywhere in
the world and to use, sell, lease, offer to sell or lease, import, export,
otherwise transfer physical possession of or otherwise transfer title to such
Products
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
-4-
<PAGE> 5
in the Licensed Field in the Territory. Such license or sublicense shall be
exclusive even as to XT, and shall include the exclusive right to grant and
authorize sublicenses for exploitation worldwide; provided, however, that
Licensee may not, under this license, grant sublicenses to any rights to the
Mice except as provided in Section 2.2 of this Agreement.
2.2 In connection with the grant of a sublicense under this
Agreement to a third party, and notwithstanding any provision to the contrary in
the Master Research License and Option Agreement or any Material Transfer
Agreement entered into between the parties under Sections 2.1, 2.2 or 2.3 of the
Master Research License and Option Agreement, Licensee shall have the right to
grant a sublicense to use Mice and Future Generation Mice transferred to the
third party pursuant to the terms of Section 2.7 of the Master Research License
and Option Agreement, and Transgenic Products other then Mice or Future
Generation Mice, to research, develop, make, have made, use, import, export,
sell, lease, offer to sell or lease or otherwise distribute or commercialize
Products, with the proviso that the sublicense described in this Section 2.2
shall not exceed the Licensee's rights conferred in accordance with the Master
Research License and Option Agreement or this Product License.
2.3 It is understood and agreed that, as to all XT-Controlled
Rights, the grant of rights under this Article 2 shall be subject in all
respects to the applicable XT In-License(s) pursuant to which such XT-Controlled
Rights were granted to XT.
3. LICENSE FEE.
Licensee shall pay to XT within thirty days of the Effective Date a
license fee of [***].
4. ROYALTIES.
4.1 Royalty Rates. In consideration for the license and rights
granted herein, Licensee agrees to pay to XT royalties of [***] of Net Sales of
Products by it and its Affiliates and Sublicensees.
4.2 Royalty Offsets. In the event that (i) Licensee, its
Affiliate or Sublicensee is required to pay a non-Affiliate third party amounts
with respect to Products under agreements for patent rights or other
technologies with Licensee, its Affiliate or Sublicensee, in its reasonable
judgment, determines are necessary or desirable to license or acquire with
respect to such Products (excluding any such payments made to Licensee by its
Affiliates), or (ii) any reimbursement payments are due to XT pursuant to
Section 5.1 below, then Licensee may deduct the aggregate of any such amounts
from any royalty amount owing to XT for the sale of such Products pursuant to
Section 4.1 above; provided, however, that payments from Licensee to a third
party that is an Affiliate, or was an Affiliate at any time within two (2) years
prior to the Effective Date, may not be offset under this Section 4.2.
Notwithstanding the foregoing provisions of this Section 4.2, in no event shall
the royalties due to XT pursuant to Section 4.1 above be so reduced to less than
[***] of the amount that would otherwise be due to XT thereunder. [***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
-5-
<PAGE> 6
[***].
4.3 Single Royalty; Non-Royalty Sales. Only one royalty shall be
payable with respect to any Product, regardless of how many claims or patents
within the Licensed Technology cover such Product. In addition, no royalty shall
be payable under this Article 4 with respect to sales of Products among Licensee
and its Affiliates and/or Sublicensees and their Affiliates or for use in
research and/or development or clinical trials.
4.4 No Patent Protection. Royalties shall be payable at the rates
specified in Section 4.1 or 4.2 above only with respect to sales of Products
that would infringe a Valid Claim in the country in which such Products are
sold. In the event that such Products are not covered by a Valid Claim in such
country, XT shall be paid a royalty on such sales in accordance with this
Article 4, but the royalty due XT with respect to Net Sales in such country will
equal [***] of the royalty set forth in Section 4.1 or as it may be offset under
Section 4.2.
4.5 Combination Products. In the event that a Product is sold in
combination as a single product with another product or component, Net Sales
from such combination sales for purposes of calculating the amounts due under
this Article 4 shall be calculated by multiplying the Net Sales of that
combination by the fraction A/(A+B), where A is the gross selling price of the
Product sold separately and B is the gross selling price of the other product
sold separately. In the event that no such separate sales are made in the same
quarter by Licensee, Net Sales for royalty determination shall be as reasonably
allocated by Licensee, between such Product and such other product, based upon
their relative importance and proprietary protection.
4.6 Termination of Royalties. Royalties under Section 4.1, 4.2,
or 4.4 will be due until the later of (i) ten years from the first commercial
sale of Products in any country or (ii) on a country-by-country basis, the
expiration of the last-to-expire patent within the Licensed Technology covering
the Products in such country.
5. THIRD PARTY ROYALTIES.
5.1 Royalties Payable by XT. XT will be responsible for the
payment of any royalties, license fees and milestone and/or other payments due
to third parties under licenses or similar agreements entered into by XT
necessary to allow the manufacture, use or sale of Products. Licensee shall
reimburse XT for any royalties paid by XT to third parties under licenses or
similar agreements covering Products necessary to allow the manufacture, use or
sale or other exploitation of Products anywhere in the world. Licensee shall
continue any such reimbursement payments to XT until XT's obligation to pay
royalties to a third party under any license covering Products expires or
terminates. XT agrees not to enter into any license or similar agreement after
the Effective Date which would obligate Licensee to make any payments under this
Section 5.1 without the prior written consent of Licensee.
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
-6-
<PAGE> 7
5.2 Royalties Payable by Licensee. Xenotech shall have no
responsibility under the terms of this Agreement for the payment of any
royalties, license fees or milestone or other payments due to third parties
under licenses or similar agreements entered into by Licensee, its Affiliates,
or its Sublicensees to allow the manufacture, use or sale of Products.
6. ACCOUNTING AND RECORDS.
6.1 Royalty Reports and Payments. After the first commercial sale
of Products on which royalties are required, Licensee agrees to make quarterly
written reports to XT within eighty days after the end of each calendar quarter,
stating in each such report the number, description, and aggregate Net Sales of
Products sold during the calendar quarter upon which a royalty is payable under
Article 4 above. Concurrently with the making of such reports, Licensee shall
pay to XT royalties at the applicable rate specified in Section 4.1, 4.2 or 4.4
above and all royalties payable pursuant to Section 5.1 above, and any
adjustment to Net Sales for a prior period in accordance with the definition of
Net Sales in Section 1.11 hereof. All payments to XT hereunder shall be made in
U.S. Dollars to a bank account designated by XT.
6.2 Early Third Party License Payments. If XT is obligated to pay
royalties to a third party prior to ninety days after the end of the calendar
quarter, XT shall so notify Licensee and Licensee shall provide the reports and
payments set forth in Section 6.1 above not later than ten days before the date
such payments are due to the third party. Up to thirty-five days before such
payments are due, XT may provide Licensee with an invoice by facsimile setting
forth the royalties XT must pay third parties with respect to Licensee's
activities in the Territory in the preceding quarter, and Licensee shall pay
such invoices within thirty days of receipt of such invoice.
6.3 Records; Inspection. Licensee shall keep (and cause its
Affiliates and Sublicensees to keep) complete, true and accurate books of
account and records for the purpose of determining the royalty amounts payable
to XT under this Agreement. Such books and records shall be kept at the
principal place of business of Licensee or its Affiliates or Sublicensees, as
the case may be, for at least three years following the end of the calendar
quarter to which they pertain. Such records of Licensee or its Affiliates will
be open for inspection during such three-year period by a representative of XT
for the purpose of verifying the royalty statements. Licensee shall require each
of its Sublicensees to maintain similar books and records and to open such
records for inspection during the same three-year period by a representative of
Licensee reasonably satisfactory to XT on behalf of, and as required by, XT for
the purpose of verifying the royalty statements. All such inspections may be
made no more than once each calendar year, at reasonable times mutually agreed
by XT and Licensee. The XT representative will be obliged to execute a
reasonable confidentiality agreement prior to commencing any such inspection.
Inspections conducted under this Section 6.3 shall be at the expense of XT,
unless a variation or error producing an increase exceeding [***] of the amount
stated for the period covered by the inspection is established in the course of
any such inspection, whereupon all costs relating thereto will be paid by
Licensee. Upon the expiration of three years following the end of any fiscal
year, the calculation of royalties payable with respect to
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
-7-
<PAGE> 8
such year shall be binding and conclusive, and Licensee shall be released from
any liability or accountability with respect to royalties for such year.
6.4 Currency Conversion. If any currency conversion shall be
required in connection with the calculation of royalties hereunder, such
conversion shall be made using the selling exchange rate for conversion of the
foreign currency into U.S. Dollars, quoted for current transactions reported in
The Wall Street Journal for the last business day of the calendar quarter to
which such payment pertains.
6.5 Late Payments. Any payments due from Licensee that are not
paid on the date such payments are due under this Agreement shall bear interest
to the extent permitted by applicable law at the prime rate as reported by the
Bank of America in San Francisco, California on the date such payment is due,
plus an additional [***] percent, calculated on the number of days such payment
is delinquent. This Section 6.5 shall in no way limit any other remedies
available to any party.
6.6 Withholding Taxes.
6.6.1 Unless immediately reimbursable under Section 6.6.2
below, all payments required to be made pursuant to Articles 3, 4 and 5 hereof
shall be without deduction or 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. Such taxes are referred to herein as "Withholding
Taxes" and such Withholding Taxes shall be the sole responsibility of the
withholding party. The withholding party shall provide a certificate evidencing
payment of any Withholding Taxes hereunder.
6.6.2 XT agrees to elect to claim a tax credit for
Withholding Taxes with respect to which it is entitled so to elect, and further
agrees not to amend such election for the full carry-forward period with respect
to such credit. At the time that XT realizes a reduction in U.S. tax liability
by actually utilizing the Withholding Taxes as a credit against regular U.S. tax
liability (determined on a "first-in-first-out" basis pro rata with other
available foreign tax credits) , then the amount of such reduction attributable
to such credit shall immediately be reimbursed to the withholding party. For
these purposes, a reduction in U.S. tax liability shall include both a direct
reduction in XT's own tax liability and a reduction in the U.S. tax liability of
any of its partners.
6.7 Tax Indemnity. Except as provided in Section 6.6, each party
(the "Tax Indemnitor") shall indemnify and hold harmless the other party hereto
(each a "Tax Indemnitee") from and against any tax or similar governmental
charge assessed solely because of this Agreement with respect to and directly
attributable to the income or the assets of the Tax Indemnitor. In the event
that any governmental agency shall make a claim against a party hereto which
could give rise to an indemnity hereunder, such potential Tax Indemnitee shall
give reasonably prompt notice to the potential Tax Indemnitor of the assertion
of such claim. If the transmission of such notice is unreasonably deferred and
has a material, adverse affect on the ability of the potential Tax Indemnitor to
challenge such claim, such potential Tax Indemnitor shall be released from
liability hereunder. The Tax Indemnitor alone shall (at its own expense) control
the defense or compromise
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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<PAGE> 9
of any such claim. The Tax Indemnitee shall execute any documents required to
enable Tax Indemnitor to defend such claim, provide any information necessary
therefor, and cooperate with Tax Indemnitor in such defense.
6.8 XT Tax Indemnity. XT shall indemnify and hold harmless
Licensee and its Affiliates from and against any increase to its country of
incorporation income tax liability directly attributable to a positive
adjustment to the amount of gross receipts (an "Adjustment") reported or
reportable by such party from the income, including the royalty income, received
from Licensee on Covered Products. The amount payable hereunder shall be equal
to the difference between (a) the product of (i) the amount of the Adjustment,
and (ii) the highest combined marginal corporate tax rate in the country of
incorporation in effect for the taxable year for which such Adjustment is made,
and (b) the reduction in the party's foreign tax liability, which for purposes
of this Agreement shall be equal to the product of (i) the amount of any
correlative adjustment to its foreign taxable income, and (ii) the highest
combined marginal foreign corporate tax rate in effect for the taxable year for
which the correlative adjustment is made. No indemnification payment shall be
required hereunder until comprehensive efforts to obtain a correlative
adjustment to Licensee's or its Affiliates', as the case may be, taxable income
in a foreign state (which may include, for example invoking competent authority
provisions under the U.S. Japanese Income Tax Treaty (if applicable) or other
applicable bilateral tax treaty) have, to the extent reasonable to do so, been
exhausted.
7. RESEARCH AND DEVELOPMENT.
7.1 Funding and Conduct. Licensee shall independently furnish and
be responsible for funding and conducting all of its preclinical and clinical
research and development of Products, at its own expense.
7.2 Biomaterials. In the case of Previously Selected Antigens as
defined in the Master Research License and Option Agreement, at the reasonable
request of Licensee, XT shall make available as part of the license granted
hereunder to Licensee [***]. Such hybridomas, reagents and materials, as well as
the related data thus made available will be used only by Licensee and its
Affiliates and Sublicensees and manufacturing subcontractors.
8. DUE DILIGENCE.
8.1 Reasonable Commercial Efforts: [***] Milestone.
8.1.1 Licensee agrees to use commercially reasonable
efforts consistent with prudent business judgment to commercialize Products, by
the [***] by Licensee, or its Affiliate or Sublicensee, in the United States or
Japan within such period of time as may be agreed upon by the parties after good
faith negotiations taking into account factors relating to the Product Antigen
or, if no such period is agreed upon, three years from the Effective Date.
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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8.1.2 Notwithstanding the foregoing, Licensee shall be
required actively and continually to [***] by Licensee, or its Affiliate or
Sublicensee, as soon as producible after the Effective Date using reasonable
commercial efforts consistent with prudent business judgment. After [***]
Licensee, or its Affiliate or Sublicensee, shall be required to have [***] and
to be actively conducting clinical trials in pursuit of regulatory approval for
the Products in the United States or Japan.
8.2 Failure to Meet Due Diligence Obligation.
8.2.1 If the diligence requirements set forth in Section
8.1 are not met by Licensee (or its Affiliates or Sublicensees) in the United
States or in Japan, Licensee's rights hereunder shall terminate upon written
notice by XT to Licensee and subject to Sections 8.3, 8.4 and 13.3 below.
8.2.2 Notwithstanding Section 8.2.1, the license granted
hereunder to Licensee shall not terminate by reason of a delay in meeting the
[***] milestone set forth in Section 8.1.1, to the extent that prudent business
judgment, based on circumstances outside of Licensee's reasonable control,
reasonably justifies such delay.
8.3 Dispute Resolution. In the event that a dispute arises
whether the diligence requirements in Article 8 have been met or circumstances
exist which Licensee believes justifies a failure on its part to meet such
obligation, the parties will attempt to resolve any dispute by mutual agreement
during a period of 30 days following Licensee's receipt of the notice under
Section 8.2.1.
8.4 Arbitration. In the event that the parties are unable to
resolve such dispute pursuant to Section 8.3 above, such dispute shall be
settled between XT and Licensee by binding arbitration as set forth in Section
14.12. If the arbitrator determines that the party acted in good faith, but
failed to meet its obligations under Section 8.1 above, the license granted to
such party shall not terminate unless the nonperforming party fails to cure such
non-performance within a reasonable period of time, as determined by the
arbitrator.
9. PATENTS.
9.1 XenoMouse Technology.
(a) XT or its licensor, as they may agree, shall have
responsibility for preparing, filing, prosecuting and maintaining patents and
patent applications worldwide relating to the XenoMouse Technology and
conducting any interferences, oppositions, reexaminations, or requesting
reissues or patent term extensions with respect to the XenoMouse Technology. XT
shall keep Licensee reasonably informed as to the status of such patent matters,
including without limitation, by providing Licensee the opportunity to review
and comment on any substantive documents which will be filed in any patent
office, and providing Licensee copies of any substantive documents received by
XT from such patent offices including notice of all interferences,
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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<PAGE> 11
reexaminations, oppositions or requests for patent term extensions. Licensee
shall cooperate with and assist XT in connection with such activities, at XT's
request and expense.
(b) In the event that Licensee becomes aware that any
XenoMouse Technology necessary for the practice of the license granted herein is
infringed or misappropriated by a third party or is subject to a declaratory
judgment action arising from such infringement, Licensee shall promptly notify
XT and XT shall thereafter promptly notify the owner of such intellectual
property. XT or its licensor, as they may agree, shall have the exclusive right
to enforce, or defend any declaratory judgment action, at its expense, involving
any XenoMouse Technology. In such event, XT shall keep Licensee reasonably
informed of the progress of any such claim, suit or proceeding. Any recovery
received by XT as a result of any such claim, suit or proceeding shall be used
first to reimburse XT for all expenses (including attorneys, and professional
fees) incurred in connection with such claim, suit or proceeding, and the
remainder divided [***] between XT and Licensee, only to the extent that such
recovery is related to the Products.
9.2 Antigen Technology.
9.2.1 Licensee shall, at its expense, have the initial
worldwide responsibility for preparing, filing, prosecuting and maintaining
patent applications and conducting any interferences, oppositions,
reexaminations, or requesting reissues or patent term extensions with respect to
Antigen Technology, except to the extent XT may not have the right to do so.
Licensee shall give XT the opportunity to review the status of all such pending
patent applications and actions and shall keep XT fully informed of the progress
of such applications and actions, including, without limitation, by promptly
providing XT with copies of all substantive worldwide correspondence sent to and
received from patent offices, and providing notice of all interferences,
reexaminations, oppositions or requests for patent term extensions. In the event
that Licensee declines or fails to prepare, file, prosecute or maintain such
patent applications or patents or take such other actions, relating to the
Products in any country, it shall promptly and in no event later than ninety
days prior to any filing deadline, provide notice to XT. XT shall have the right
to assume such responsibilities at its own expense, using counsel of its choice.
9.2.2 In the event that Licensee becomes aware that any
Antigen Technology is infringed or misappropriated by a third party in any
country of the world, or is subject to a declaratory judgment action arising
from such infringement in any country, Licensee shall promptly notify XT and XT
shall thereafter promptly notify the owner of such intellectual property.
Licensee shall have the exclusive right to enforce, or defend any declaratory
judgment action, in any country of the world, at its expense, involving any
Antigen Technology. In such event, Licensee shall keep XT reasonably informed of
the progress of any such claim, suit or proceeding. Any recovery by Licensee
received as a result of any such claim, suit or proceeding shall be used first
to reimburse Licensee for all expenses (including attorneys, and professional
fees) incurred in connection with such claim, suit or proceeding, and the
remainder divided [***] between Licensee and XT.
9.3 Infringement Claims. If the production, sale or use of
Products pursuant to this Agreement results in any claim, suit or proceeding
alleging patent infringement against Licensee
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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<PAGE> 12
(or its Affiliates or Sublicensees), Licensee shall promptly notify XT thereof
in writing setting forth the facts of such claim in reasonable detail. [***],
Licensee shall have the exclusive right to defend and control the defense of any
such claim, suit or proceeding, at its own expense, using counsel of its choice.
Licensee shall keep XT reasonably informed of all material developments in
connection with any such claim, suit or proceeding as it relates to the Licensed
Technology, Licensee shall have the right to deduct any damages and expenses
(including attorneys' and professional fees) against any amounts due, or which
may become due, to XT pursuant to this Agreement. Notwithstanding the above,
Licensee shall not be able to settle any such claim, suit or proceeding that
involves any admission of the invalidity of the Licensed Technology.
9.4 Patent Marking. Licensee agrees to mark and have its
Affiliates and Sublicensees mark all Products sold pursuant to this Agreement in
accordance with the applicable statutes or regulations in the country or
countries of manufacture and sale thereof.
10. CONFIDENTIALITY.
10.1 Confidential Information. Except as expressly provided
herein, the parties agree that, for the term of this Agreement and for five
years thereafter, the receiving party shall keep completely confidential and
shall not publish or otherwise disclose and shall not use for any purpose any
information furnished to it by another party hereto pursuant to this Agreement
except to the extent that it can be established by the receiving party by
competent proof that such information:
(a) was already known to the receiving party, other than
under an obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise
part of the public domain at the time of its disclosure to the receiving party;
(c) 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; or
(d) was subsequently lawfully disclosed to the receiving
party by a person other than a party or developed by the receiving party without
reference to any information or materials disclosed by the disclosing party.
10.2 Permitted Disclosures. Notwithstanding Sections 10.1 above
and 14.16 below, each party hereto may disclose the other party's information to
the extent such disclosure is reasonably necessary in filing or prosecuting
patent applications, prosecuting or defending litigation, complying with
applicable governmental regulations or otherwise submitting information to tax
or
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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<PAGE> 13
other governmental authorities, making a permitted sublicense or other exercise
of its rights hereunder or conducting clinical trials, provided that if a party
is required to make any such disclosure of the other party's secret or
confidential information, other than pursuant to a confidentiality agreement, it
will give reasonable advance notice to the latter party of such disclosure
requirement and, save to the extent inappropriate in the case of patent
applications, will use efforts consistent with prudent business judgment to
secure confidential treatment of such information prior to its disclosure
(whether through protective orders or otherwise). Notwithstanding the foregoing,
XT shall not disclose to third parties, clinical data or regulatory filings
received from Licensee except as agreed in writing by Licensee.
11. SUBLICENSES.
Pursuant to Article 2 herein, Licensee will have the right to grant and
authorize sublicenses to third parties; provided, however, the Licensee shall
remain responsible for any payments due XT for Net Sales of Products by any
Sublicensee. Licensee may retain any amounts received from Sublicensees in
excess of the amounts owed to XT pursuant to Articles 4 and 5. Any sublicense
granted by Licensee pursuant to this Agreement shall provide that the
Sublicensee will be subject to the applicable terms of this Agreement. Licensee
shall provide XT with a copy of relevant portions of each sublicense agreement,
as reasonably required by XT.
12. REPRESENTATIONS AND WARRANTIES.
12.1 XT. XT represents and warrants that:
(i) it has the full right and authority to enter into this
Agreement and grant the rights and licenses granted herein;
(ii) it has not previously granted and will not grant any
rights inconsistent or in conflict with the rights and licenses granted to
Licensee herein;
(iii) there are no existing or threatened actions, suits
or claims pending against XT with respect to the Licensed Technology or the
right of XT to enter into and perform its obligations under this Agreement;
(iv) it has not previously granted, and will not grant
during the term of this Agreement, any right, license or interest in and to the
Licensed Technology, or any portion thereof, with respect to the Products, or
their manufacture or use;
(v) Schedule 3 hereto sets forth all royalties, license
fees, milestone payments and similar payments due to third parties for which
Licensee is obligated to reimburse XT under Section 5.1 above as of the
Effective Date; and
(vi) the Licensed Technology is all the technology owned
by or licensed to XT as of the Effective Date.
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<PAGE> 14
12.2 Licensee. Licensee represents and warrants that:
(i) it has the full right and authority to enter into
this Agreement,
(ii) to its knowledge, there are no existing or threatened
actions, suits or claims pending with respect to the subject matter hereof or
the right of Licensee to enter into and perform its obligations under this
Agreement; and
(iii) it has not entered and during the term of this
Agreement will not enter any other agreement inconsistent or in conflict with
this Agreement.
12.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, XT MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND VALIDITY OF LICENSED
TECHNOLOGY CLAIMS, ISSUED OR PENDING.
12.4 Effect of Representations and Warranties. It is understood
that if the representations and warranties under this Article 12 are not true
and accurate and a party incurs liabilities, costs or other expenses as a result
of such falsity, the party at fault shall indemnify, defend and hold the injured
party harmless from and against any such liabilities, costs or expenses
incurred, provided that the party at fault receives prompt notice of any claim
against the injured party resulting from or related to such falsity and the sole
right to control the defense or settlement thereof.
13. TERM AND TERMINATION.
13.1 Effectiveness. This Agreement shall become effective as of
the Effective Date and the license rights granted by XT under Article 2 above
shall be in full force and effect as of such date.
13.2 Term. Unless earlier terminated pursuant to the other
provisions of this Article 13, this Agreement shall continue in full force and
effect until the later of
(i) the expiration of the last to expire patent within the
Licensed Technology claiming Products; or
(ii) the twentieth anniversary of the Effective Date.
The licenses granted under Article 2 shall survive the expiration (but not an
earlier termination) of this Agreement; provided that such licenses shall in
such event become nonexclusive.
13.3 Termination for Breach. Either party to this Agreement may
terminate this Agreement in the event the other party shall have materially
breached or defaulted in the
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<PAGE> 15
performance of any of its material obligations hereunder, and such shall have
continued for sixty days after written notice thereof was provided to the
breaching party by the nonbreaching party that terminates the Agreement as to
such party. Any termination shall become effective at the end of such sixty day
period unless the breaching party has cured any such breach or default prior to
the expiration of the sixty day period. However, if the party alleged to be in
breach of this Agreement disputes such breach within such sixty day period, the
non-breaching party shall not have the right to terminate this Agreement unless
it has been determined by an arbitration proceeding in accordance with Section
14.12 below that this Agreement was materially breached, and the breaching party
fails to cure such breach within thirty days following the final decision of the
arbitrators or such other time as directed by the arbitrators.
13.4 Other Termination Rights. Licensee may terminate this Agreement and
the license granted herein, in its entirety or as to any particular patent
within the Licensed Technology in a particular country, at any time, by
providing XT ninety-days written notice. In the event of termination as to a
particular country, the subject patent in such country shall cease to be within
the Licensed Technology for all purposes of this Agreement.
13.5 Effect of Termination.
13.5.1 Termination of this Agreement for any reason shall not
release either party hereto from any liability which at the time of such
termination has already accrued to the other party or which is attributable to a
period prior to such termination.
13.5.2 In the event this Agreement is terminated for any reason,
Licensee and its Affiliates and Sublicensees shall have the right to sell or
otherwise dispose of the stock of any Products subject to this Agreement then on
hand. Upon termination of this Agreement by XT for any reason, any sublicense
granted by Licensee hereunder shall survive, provided that upon request by XT,
such Sublicensee promptly agrees in writing to be bound by the applicable terms
of this Agreement.
13.5.3 This Agreement, including, without limitation, any
licenses or sublicenses granted pursuant to this Agreement, shall survive any
dissolution, liquidation or acquisition of XT. Such licenses shall remain in
full force and effect even after any distribution, following dissolution, of the
intellectual property owned or licensed to XT, to any entity. Any transfer of
such intellectual property prior to or following dissolution shall be subject to
the licenses granted herein.
13.5.4 This Agreement, including the license granted in Article
2, is independent of, and shall not be affected by, any breach or termination of
the Master Research License and Option Agreement or any other agreement between
the parties or their Affiliates. In the event of the termination of the Master
Research License and Option Agreement, the rights and obligations of the parties
hereto under Article 12 thereof shall be deemed to be part of this Agreement.
13.5.5 Sections 6.3, 6.5, 6.6, 6.7 and 6.8 and Articles 10, 12,
13 and 14 shall survive the expiration and any termination of this Agreement for
any reason.
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14. MISCELLANEOUS.
14.1 Governing Laws. This Agreement shall be interpreted and
construed in accordance with the laws of the State of California, without regard
to conflicts of law principles.
14.2 Waiver. It is agreed that no waiver by any party hereto of
any breach or default of any of the covenants or agreements herein set forth
shall be deemed a waiver as to any subsequent and/or similar breach or default.
14.3 Assignment. This Agreement and the license granted hereunder
may not be assigned by Licensee to any third party without the written consent
of XT, and XT may not assign this Agreement to a third party without the consent
of Licensee; except any party may assign this Agreement without such consent to
(a) an Affiliate (provided that such Affiliate is two-thirds or greater owned
directly or indirectly) or (b) an entity that acquires substantially all of the
assets of the monoclonal antibody business segment of the assigning party. The
terms and conditions of this Agreement shall be binding on and inure to the
benefit of the permitted successors and assigns of the parties.
14.4 Independent Contractors. The relationship of the parties
hereto is that of independent contractors. The parties hereto are not deemed to
be agents, partners or joint venturers of the others for any purpose as a result
of this Agreement or the transactions contemplated thereby.
14.5 Compliance with Laws. In exercising their rights under this
license, the parties shall fully comply with the requirements of any and all
applicable laws, regulations, rules and orders of any governmental body having
jurisdiction over the exercise of rights under this license.
14.6 No Implied Obligations. Except as expressly provided in
Article 8 above, nothing in this Agreement shall be deemed to require Licensee
to exploit the Licensed Technology nor to prevent Licensee from commercializing
products similar to or competitive with any Products, in addition to or in lieu
of such Products.
14.7 Notices. Any notice required or permitted to be given to the
parties hereto shall be given in writing and shall be deemed to have been
properly given if delivered in person or when received if mailed by first class
certified mail to the other party at the appropriate address as set forth below
or to such other addresses as may be designated in writing by the parties from
time to time during the term of this Agreement.
XT: Xenotech, L.P.
322 Lakeside Drive
Foster City, California 94404
Attn: Chief Financial Officer
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<PAGE> 17
Japan Tobacco Inc.: Japan Tobacco Inc.
JT Building
2-1 Toranomon 2-chome
Minato-ku, Tokyo 105
Japan
Attn: Vice President
Pharmaceutical Division
with a copy to: JT America Inc.
1825 South Grant Street, Suite 220
San Mateo, CA 94402
Attn: President
and to: Gilbert, Segall and Young LLP
430 Park Avenue
New York, NY 10022
Attn: Neal N. Beaton, Esq.
Abgenix, Inc.: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, California 94555
Attn: President
with a copy to: Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
Attn: Kenneth A. Clark, Esq.
14.8 Export Laws. Notwithstanding anything to the contrary
contained herein, all obligations of XT and Licensee are subject to prior
compliance with United States export regulations and such other United States
laws and regulations as may be applicable, and to obtaining all necessary
approvals required by the applicable agencies of the government of the United
States. Licensee shall use efforts consistent with prudent business judgment to
obtain such approvals. XT shall cooperate with Licensee and shall provide
assistance to Licensee as reasonably necessary to obtain any required approvals.
14.9 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision and the parties shall discuss in good faith
appropriate revised arrangements.
14.10 Force Majeure. Nonperformance of any party (except for
payment obligations) shall be excused to the extent that performance is rendered
impossible by strike, fire, earthquake, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other
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<PAGE> 18
reason where failure to perform, is beyond the reasonable control and not caused
by the negligence, intentional conduct or misconduct of the nonperforming party.
14.11 No Consequential Damages. IN NO EVENT SHALL ANY PARTY
HERETO BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
THIS
AGREEMENT OR THE EXERCISE OF RIGHTS HEREUNDER.
14.12 Dispute Resolution; Arbitration. The parties will attempt
to resolve any dispute under this Agreement by mutual agreement, and, if
required, there shall be a face-to-face meeting between senior executives of the
parties. Any dispute under this Agreement which is not settled after such
meeting, shall be finally settled by binding arbitration, conducted in
accordance with the Rules of Arbitration of the International Chamber of
Commerce by three arbitrators appointed in accordance with said rules. The
arbitration proceedings and all pleadings and written evidence shall be in the
English language. Any written evidence originally in a language other than
English shall be submitted in English translation accompanied by the original or
a true copy thereof. The costs of the arbitration, including administrative and
arbitrators' fees, shall be shared equally by the parties. Each party shall bear
its own costs and attorneys' and witness' fees. The prevailing party in any
arbitration, as determined by the arbitration panel, shall be entitled to an
award against the other party in the amount of the prevailing party's costs and
reasonable attorneys, fees. The arbitration shall be held in San Francisco,
California. A disputed performance or suspended performances pending the
resolution of the arbitration must be completed within thirty days following the
final decision of the arbitrators. Any arbitration shall be completed within six
months from the filing of notice of a request for such arbitration.
14.13 Complete Agreement. It is understood and agreed between XT
and Licensee that this Agreement constitutes the entire agreement, both written
and oral, between the parties with respect to the subject matter hereof, and
that all prior agreements respecting the subject matter hereof, either written
or oral, expressed or implied, shall be abrogated, canceled, and are null and
void and of no effect. No amendment or change hereof or addition hereto shall be
effective or binding on either of the parties hereto unless reduced to writing
and executed by the respective duly authorized representatives of XT and
Licensee.
14.14 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and both together
shall be deemed to be one and the same agreement.
14.15 Headings. The captions to the several Articles and Sections
hereof are not a part of this Agreement, but are included merely for convenience
of reference only and shall not affect its meaning or interpretation.
14.16 Nondisclosure. Except as provided in Article 10, each of
the parties hereto agrees not to disclose to any third party the terms of this
Agreement without the prior written consent of each other party hereto, except
to advisors, investors, licensees, sublicensees and others on a need to know
basis under circumstances that reasonably ensure the confidentiality thereof, or
to the extent
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<PAGE> 19
required by law; provided, however, that the royalty rate specified in Section
4.1 of this executed Product License shall be redacted before the terms of this
executed Product License are disclosed to potential licensees and sublicensees.
Without limitation upon any provision of this Agreement, each of the parties
hereto shall be responsible for the observance by its employees, consultants and
contractors of the foregoing confidentiality obligations.
14.17 Conformity with GenPharm Cross-License. The rights and
licenses granted to Licensee hereunder shall be subject to the GenPharm Cross
License, and to the extent that this Agreement purports to grant greater rights
to Licensee than is permitted under the GenPharm Cross License, such rights
shall be granted only to the extent permitted under the GenPharm Cross License,
and the terms of the GenPharm Cross License shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement, through
their respective officers hereunto duly authorized, as of the day and year first
above written.
XENOTECH, INC. (as General LICENSEE
Partner of XENOTECH, L.P.)
By: /s/ NORIAKI OKUBO By: /s/ R. SCOTT GREER
-------------------------------------- --------------------------
Name: Noriaki Okubo Name: R. Scott Greer
------------------------------------ ------------------------
Title: President and CEO, Xenotech, Inc. Title: President and CEO
----------------------------------- -----------------------
and By: /s/ RAYMOND M. WITHY
----------------------------------
Name: Raymond M. Withy
------------------------------------
Title: Chairman, Xenotech, Inc.
-----------------------------------
Schedule 1: Patents [***] Technology"
Schedule 2: Patents [***] Technology"
Schedule 3: Payments Due to Third Parties
Schedule 4: XT In-Licenses
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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<PAGE> 20
SCHEDULE 1 PATENTS
None.
<PAGE> 21
SCHEDULE 1
None.
<PAGE> 22
Schedule 2 - Patents
Docket No. Filing Date Serial No. Title Inventors
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 23
Schedule 2 - Patents
(Continued)
Docket No. Filing Date Serial No. Title Inventors
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 24
Schedule 2
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 25
Schedule 2
(Continued)
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 26
Schedule 2
(Continued)
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 27
Schedule 2
(Continued)
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 28
Schedule 3
Royalties Payable by Xenotech
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 29
Schedule 4
Xenotech Controlled Rights
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 1
EXHIBIT 10.33
Execution Copy
RESEARCH LICENSE AND OPTION AGREEMENT
This License Option Agreement (the "Agreement"), effective as of April
6, 1998 (the "Option Effective Date") is made by and between Abgenix, Inc., a
Delaware corporation ("ABX") and Genentech, Inc., a Delaware corporation ("GNE")
with reference to the following facts and circumstances.
RECITALS
A. ABX has rights in certain technology relating to certain strains of
XenoMouse (TM) Animals (as described below);
B. GNE desires to use such XenoMouse Animals to generate antibodies to
[*] (as defined below);
C. ABX is willing to grant to GNE, and GNE desires to obtain, a license
to use XenoMouse Animals solely for immunization with [*] for research purposes,
as described below and on the terms and conditions set forth herein;
D. ABX has immunized XenoMouse Animals using [*] material provided by
GNE pursuant to that certain Materials Transfer Agreement between GNE and ABX
effective as of [*] (as defined below, the "MTA"); and
E. ABX is willing to grant to GNE, and GNE desires to obtain, an option
to enter into the [*] Product License Agreement with respect to Products derived
from immunization of XenoMouse Animals with [*], all as described fully below
and on the terms and conditions set forth herein.
NOW THEREFORE, for and in consideration of the covenants, conditions,
and undertakings hereinafter set forth, it is agreed by and between the parties
as follows:
1. DEFINITIONS
For purposes of this Agreement, the terms set forth in this Article
shall have the meanings set forth below:
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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1.1. The terms "ABX In-License," "ABX Know-How," "ABX Patent Rights,"
"Affiliate," "Antibody," "Derived" or "derived," "Excluded Technology," "Field,"
"Genetic Material," "GenPharm Cross License," "IND," "Independent Discovery,"
"JTI," "Licensed Technology," "MTA," "Product," "Product Antigen," "[*],"
"Product License," "Sublicense," "Sublicensee," "Territory," "XenoMouse,"
"XenoMouse Animals," and "Xenotech Agreement" shall have the meaning ascribed
thereto in the [*] Product License.
1.2. "GNE Option Agreement" shall mean this Research License and Option
Agreement entered into by and between ABX and GNE effective as of the Option
Effective Date (as defined in the introductory paragraph above), as the same may
be amended from time to time.
1.3. "Option" and "Option Expiration Deadline" shall have the meanings
described in Section 3.1 below.
1.4. "Research Field" shall mean the immunization of XenoMouse Animals
with the Product Antigen and the use of XenoMouse Animals that are so immunized
and materials generated in whole or part from XenoMouse Animals that are so
immunized, in each case solely for the creation, identification, analysis,
manufacture, research, and development of Products in the Field. For purposes of
clarification, the Research Field shall not include, among other things: (i) the
creation, breeding or development of mice or any transgenic animals, (ii) use in
humans of materials derived in whole or part from the XenoMouse Animals, (iii)
use of XenoMouse Animals or materials derived in whole or part from XenoMouse
Animals (including without limitation Products) for any purpose other than the
creation, identification, analysis, manufacture, testing, research and
development of Products for human medical uses, or (iv) the transfer, sale,
lease, offer for sale or lease, or other transfer of title to XenoMouse Animals
or any materials derived in whole or part from the XenoMouse Animals. For
purposes of further clarification, it is understood that "immunization" of
XenoMouse Animals with the Product Antigen includes the immunization of
XenoMouse Animals with any formulation or construction of the Product Antigen,
regardless of the three dimensional configuration of the Product Antigen,
including, but not limited to, cell lines expressing the Product Antigen on
their cell surface and chimeric molecules containing the Product Antigen;
provided, however, that any research, development or use of Antibodies that do
not bind to the Product Antigen (other than to determine whether they bind to
the Product Antigen) shall be outside of the scope of the licenses granted
hereunder or under the [*] Product Licenses.
1.5. "Research Plan" shall mean the research plan agreed upon by the
parties for work by the parties in the Research Field, which is attached hereto
as Exhibit A and incorporated herein, as the same may be amended from time to
time.
1.6. "[*] Product License" shall mean that certain agreement between the
parties (if entered into at all) in the form attached hereto as Exhibit B and
incorporated herein, as the same may be amended from time to time.
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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2. SUPPLY OF MICE AND MATERIALS; RESEARCH LICENSE
2.1 Supply of XenoMouse Animals and Hybridomas. Subject to the terms and
conditions of this Agreement, including those set forth in Section 2.2 below:
2.1.1 Hybridomas. As soon as practicable, but in any event, not
less than ten (10) days after the Option Effective Date, ABX shall provide GNE
with reasonable quantities of cells from hybridoma cell lines generated by ABX
from immunization of XenoMouse Animals prior to the Option Effective Date with
the Product Antigen provided by GNE pursuant to the MTA.
2.1.2 XenoMouse Animals. ABX agrees to provide to GNE, solely for
use in creating Antibodies to [*] for the creation, identification, analysis,
manufacture, research, development and commercialization of Products in
accordance with this Agreement and the [*] Product License (if entered into at
all by the parties), numbers and types of sterilized male XenoMouse Animals as
follows: (a) as soon as practicable after the Option Effective Date, but in any
event not later than twenty (20) days after the Option Effective Date, ABX will
ship to GNE sterilized male XenoMouse Animals of the sterilized male XenoMouse
Animals of the types, strains and quantities specified in item number 19 of the
Research Plan. If, before ABX has provided to GNE all the XenoMouse Animals that
ABX is required to provide under this Agreement and/or the [*] Product License
(if entered into at all by the parties), ABX develops and has available for
shipment to GNE a strain of transgenic animals that produce human antibodies
that was not available on the Option Effective Date (such a strain referred to
herein as a "New Strain"), ABX agrees to inform GNE and discuss whether GNE
would prefer to receive animals from the New Strain. Upon request of GNE, ABX
will agree to substitute a reasonable number of animals from the New Strain in
place of an equal number of XenoMouse Animals, of the types and strains
specified in the Research Plan, to be shipped to GNE under this Agreement;
provided that any such animals shall be deemed to be XenoMouse Animals for
purposes of this Agreement (including, without limitation, Section 2.2) and the
[*] Product License. GNE shall use XenoMouse Animals or animals from the New
Strain provided hereunder only for conducting the research set forth in the
Research Plan and/or for work in the Research Field, all in accordance with this
Agreement.
2.1.3 Research. GNE and ABX shall each conduct those research
activities specified for such party as outlined in the Research Plan attached
hereto as Exhibit A. The parties may amend the Research Plan (including, without
limitation, the number and type of XenoMouse Animals to be provided to GNE) only
by mutual written agreement. During the term of this Agreement, GNE and ABX
shall each update the other, as requested by the other, as to the status of any
research activities of the party under the Research Plan. It is understood that,
except as expressly provided in the Research Plan or as the parties may
otherwise agree in writing, GNE shall be responsible for conducting all other
research activities involved in the creation, research and development of
Products, including without limitation immunizations of XenoMouse Animals with
the Product Antigen, screening of Antibodies generated from such immunizations,
creation of hybridoma cells
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that produce Antibodies to the Product Antigen, production of
Antibodies to the Product Antigen, and preclinical evaluation of Antibodies to
the Product Antigen.
2.1.4 Payments. In consideration for ABX's research activities
under the Research Plan, GNE shall pay ABX in accordance with the agreed-upon
budget included in the Research Plan within thirty (30) days of receipt of
invoice from ABX.
2.1.5 Ownership of Materials and Data. It is understood and
agreed that:
(a) ABX shall solely own all XenoMouse Animals, Genetic Material
encoding such XenoMouse Animals, Antibodies, Genetic Material encoding such
Antibodies, hybridomas and B cells.
(b) GNE shall own all reagents, samples, data, results, technical
information, know-how, preclinical and/or clinical testing data and any other
non-patentable information resulting from the parties' use of the Licensed
Technology related to the Product Antigen under the MTA or under this Agreement.
(c) With respect to any materials (including, without limitation,
all Antibodies, hybridomas or Genetic Material) generated in whole or in part
from immunization of XenoMouse Animals with the Product Antigen and/or data made
or generated under the MTA, this Section 2.1.5 hereby supersedes and cancels any
terms or provisions in the MTA inconsistent with this Section 2.1.5 or any other
term of this Agreement. The transfer of physical possession of any materials
owned by, and the physical possession and use of such materials and/or data by,
GNE or ABX, as the case may be, shall not be (nor be construed as) a sale,
lease, offer to sell or lease, or other transfer of title of such materials
and/or data to GNE or ABX, as the case may be.
2.2 Supply of XenoMouse Animals and Materials; Material Transfer Terms.
It is understood and agreed that all XenoMouse Animals, and all materials
derived in whole or part from XenoMouse Animals, provided by ABX to GNE are
provided solely for use in accordance with, and subject to, the following terms
and conditions:
(a) all XenoMouse Animals transferred to GNE shall be the
property of ABX, and the transfer of physical possession to GNE, and/or
possession or use by GNE, of XenoMouse Animals shall not be, nor be construed
as, a sale, lease, offer to sell or lease, or other transfer of title to any
XenoMouse Animals;
(b) all XenoMouse Animals and all materials derived in whole or
part from the XenoMouse Animals shall remain in the control of GNE and shall not
be transferred to GNE's Affiliates or Sublicensees or any other party (other
than ABX), except as expressly permitted under the [*] Product License (if
entered into by the parties hereto);
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(c) GNE shall not attempt to use the XenoMouse Animals, or any
materials derived in whole or part from the XenoMouse Animals (including Genetic
Materials) to reproduce the XenoMouse Animals or to generate or produce other
transgenic mice or other transgenic animals;
(d) The XenoMouse Animals shall be delivered to GNE solely for
the purpose of performing the research activities set forth in the Research Plan
and work in the Research Field, and GNE shall not use the XenoMouse Animals for
any purpose other than immunizing the XenoMouse Animals with [*] and subsequent
use of such immunized XenoMouse Animals and materials derived therefrom as
reasonably necessary for creation, manufacture, testing, use, identification,
analysis, research, and for development and commercialization of Products
pursuant to the [*] Product License;
(e) GNE shall not transfer, sell, have sold, lease, offer to sell
or lease, or otherwise transfer title to (i) any XenoMouse Animals, (ii) cells
derived in whole or part from the XenoMouse Animals (including without
limitation hybridomas), or (iii) except as provided in Section 2.2(f) below, any
other materials (including without limitation Antibodies and Genetic Materials)
derived in whole or part from the XenoMouse Animals;
(f) GNE shall not transfer, sell, have sold, lease, offer to sell
or lease, otherwise transfer title to, or otherwise distribute or commercialize
any Antibody or Product without first entering into the [*] Product License with
ABX;
(g) GNE shall not use the XenoMouse Animals to make or use
antibodies to any antigen other than the Product Antigen or immunize the
XenoMouse Animals with any antigen other than the Product Antigen;
(h) Upon expiration or termination of this Agreement for any
reason, GNE shall destroy (or return to ABX) each XenoMouse Animal and certify
such destruction, except as otherwise provided in the [*] Product License (if
entered into by the parties);
(i) ABX shall own all right, title and interest in and to all
inventions and intellectual property (whether patentable or nonpatentable) made
or created by GNE (and by any of its agents or employees on behalf of, or under
authority of, GNE) through any use of the XenoMouse Animals (and/or materials
derived in whole or part from the XenoMouse Animals) which is not in accordance
with the terms and conditions set forth in this Section 2.2;
(j) Unless otherwise agreed by ABX in advance in writing, all
XenoMouse Animals delivered to GNE shall be delivered to GNE's facilities in
South San Francisco, California, and such XenoMouse Animals shall not leave such
facility (except for return to ABX); and
(k) XT shall be a third-party beneficiary of the commitments by
GNE set forth in items (a) through (g) above.
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2.3 Research License. Subject to the terms and conditions of this
Agreement (including without limitation compliance with the provisions of
Section 2.2), ABX agrees to grant, and hereby grants, to GNE an exclusive
license and sublicense of its rights, as the case may be, under the Licensed
Technology, without right to grant further sublicenses, (i) to use the XenoMouse
Animals provided by ABX in the Research Field solely for immunization with the
Product Antigen and for conducting the creation, identification, analysis,
manufacturing, research and development work set forth in the Research Plan or
work in the Research Field, (ii) to use the Licensed Technology other than
XenoMouse Animals (but including materials derived from XenoMouse Animals) for
research and development work within the scope of the Research Field, including
for work with ABX under the Research Plan in the Research Field and for other
GNE work in the Research Field. The parties acknowledge that while ABX is
granting GNE an exclusive license of its rights within the Research Field, ABX's
rights may not be exclusive from ABX's licensors. The license and sublicense
rights granted under this Section 2.3 shall terminate on the Effective Date (if
any) of the [*] Product License between ABX and GNE or, in the event that GNE
has not exercised the Option by the Option Expiration Deadline, on such Option
Expiration Deadline.
2.4 Limitation. Notwithstanding any other provision of this Agreement,
in no event shall GNE (a) file, or authorize any third party to file, an IND (or
a similar filing with an equivalent agency or regulatory body in any country)
with respect to a Product or (b) initiate, or authorize any third party to
initiate, clinical trials in humans with respect to a Product or (c) sell, or
authorize any third party to sell, a Product, unless and until GNE has entered
into the [*] Product License.
2.5 Compliance with Laws. Each party shall only use the XenoMouse
Animals and materials derived in whole or part from the XenoMouse Animals
(including without limitation any hybridomas, Antibodies, and Genetic Material)
in compliance with all applicable laws and regulations, including all applicable
National Institutes of Health guidelines, and each party agrees that such
materials will not be used in humans, except in accordance with all applicable
regulations and laws. The parties acknowledge that ABX's obligations under the
preceding sentence applies only to ABX's use of the XenoMouse Animals and
materials derived in whole or in part from the XenoMouse Animals pursuant to
this Agreement. Each party acknowledges that the XenoMouse Animals, and all
materials generated in whole or part from the XenoMouse Animals, are
experimental in nature and may have unknown characteristics and therefore agrees
to use prudence and reasonable care in the use, handling, storage,
transportation, disposition and containment thereof.
2.6 Use Only For Products; No Implied Rights. GNE agrees that it shall
not use the Licensed Technology (including, without limitation, XenoMouse
Animals, Antibodies, Antibody-secreting cells, Genetic Material encoding the
foregoing, or any other material derived from the XenoMouse Animals) except in
the course of conducting research activities within the Research Field (and as
may be permitted under the terms of the [*] Product License, if entered into by
the parties). It is understood and agreed that no implied licenses or rights are
conveyed to GNE under this Agreement, and that no license or other right shall
be created hereunder by implication, estoppel
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or otherwise, and that GNE shall not sell, lease, offer to sell or
lease, otherwise transfer title to or commercialize materials derived in whole
or part from the XenoMouse Animals, except as expressly provided under the [*]
Product License (if entered into at all by the parties).
3. OPTION TO OBTAIN [*] PRODUCT LICENSE
3.1 Option. Subject to the terms and conditions set forth in this
Agreement, ABX hereby grants to GNE an exclusive option (the "Option") to obtain
the right to enter into the [*] Product License between GNE and ABX, which
Option may be exercised by GNE pursuant to the procedures set forth in this
Article 3 on or before 5 o'clock p.m. (Pacific Time) on December 10, 1998 (the
"Option Expiration Deadline").
3.2 Exercise of Option.
3.2.1 Exercise. To exercise the Option, GNE must give ABX written
notice (the "Exercise Notice") stating that GNE desires that ABX (a) obtain the
Product License for the Product Antigen between ABX and XT and (b) enter into
the [*] Product License with GNE. GNE's exercise of the Option shall be
effective upon timely receipt by ABX of the Exercise Notice. In the event that
ABX has not received the Exercise Notice on or before the Option Expiration
Deadline, the Option shall immediately terminate.
3.2.2 Obtaining Product License from XT to ABX for [*]. As soon
as practicable after GNE's exercise of the Option (if any) in accordance with
Section 3.2.1 above, ABX shall exercise its option under the Xenotech Agreement
to obtain a Product License from XT. In the event that GNE timely exercises the
Option, ABX shall enter into such Product License with XT as soon as reasonably
practicable and in any event prior to when GNE and ABX enter into the [*]
Product License, and ABX shall send written notice to GNE at such time ABX has
entered into such Product License with XT, together with a complete copy
(excepting only financial terms) of the fully signed Product License. At such
time as ABX enters into such Product License and notifies GNE thereof as
required hereunder, GNE and ABX shall promptly execute the [*] Product License
as set forth in the form attached hereto as Exhibit B. If GNE timely exercises
its Option hereunder, ABX shall use its best efforts to enter into the specified
Product License with XT and the [*] Product License with GNE by not later than 5
o'clock p.m. (Pacific Time) on December 31, 1998. If GNE timely exercises its
Option hereunder and ABX fails or is unable to enter into the specified Product
License with XT and the [*] Product License with GNE by not later than 5 o'clock
p.m. (Pacific Time) on December 31, 1998, GNE shall (subject to the notice and
cure provisions of Section 8.3) be entitled to all available remedies conferred
on it under this Agreement and by law or in equity. Subject to the foregoing and
to the proviso at the end of this sentence, it is understood that once GNE has
exercised its Option, GNE shall be obligated to enter into the [*] Product
License and promptly thereafter pay ABX the License Fee as set forth in Section
3.1 thereof, it being understood and agreed that if GNE fails or is unwilling to
enter into the [*] Product License after having exercised the Option and unless
such failure is due to inaction of ABX or breach of ABX of
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its obligations, then GNE shall pay to ABX an amount equal to
such License Fee within fifteen (15) days of the date that ABX offers to execute
and enter into the [*] Product License with GNE; provided, however, that in the
event that anything is contemplated to be set forth on Schedule A of the [*]
Product License, GNE shall not be obligated to enter into such [*] Product
License or pay the amount set forth in this sentence. It is understood and
agreed that, notwithstanding any other provision of this Agreement, in the event
that the Product License entered into by ABX with XT is a "Qualified Exclusive
Worldwide Product License" rather than an "Exclusive Worldwide Product License"
(as each term is defined in the Xenotech Agreement), then (a) GNE shall not be
obligated to enter into the [*] Product License with ABX or pay the amount set
forth in the previous sentence, (b) ABX shall not, if ABX used commercially
reasonable best efforts to obtain an "Exclusive Worldwide Product License," be
in breach of this Agreement and (c) in the event that GNE enters the [*] Product
License notwithstanding the fact that the Product License is a "Qualified
Worldwide Exclusive Product License", then the definitions of "Product License"
and "Territory" in the [*] Product License shall be amended accordingly, and the
parties shall make such other changes as are necessary to reflect the nature of
the Product License.
3.2.3 Third Party Rights. It is understood and agreed that the
grant of rights under Articles 2 and 3 hereof shall be subject to and limited in
all respects by the terms of the applicable ABX In-License(s) pursuant to which
ABX acquired or does acquire any Licensed Technology, including, without
limitation, any rights granted to or retained by GenPharm International, Inc.
under the GenPharm Cross License, and that all rights or sublicenses granted
under this Agreement shall be to the extent that ABX may grant such rights and
sublicenses under such ABX In-Licenses.
3.2.4 Definition of [*] Antigen. ABX shall use commercially
reasonable efforts to establish as the definition of [*] under the Xenotech
Agreement the same definition of [*] as is established under this Agreement, it
being understood and agreed, however, that the precise definition of the [*]
Antigen defining the rights licensed to ABX under the Product License (and the
definition in the corresponding [*] Product License) shall be as established in
accordance with the Xenotech Agreement.
3.2.5 Use by ABX. It is understood that if GNE does not exercise
its Option on or before the Option Exercise Deadline and enter into the [*]
Product License with ABX, ABX shall be entitled, in its sole discretion, to
exercise ABX's rights under the Xenotech Agreement and enter into the Product
License related to the Product Antigen with XT on ABX's own behalf or on behalf
of a third party without further obligation to GNE, and ABX shall not be
obligated to enter into the [*] Product License with GNE. Notwithstanding the
foregoing, nothing in this Section 3.2.5 shall entitle ABX (a) to license or
make any other use of any technology, know-how, intellectual property, materials
(including, without limitation, any Antibodies, Antibody secreting cells,
hybridomas or Genetic Material) or data owned by GNE, ABX, owned jointly by GNE
and ABX, and, in each case generated in whole or in part from GNE's or ABX's
activities under this Agreement or the MTA in any case without first obtaining
GNE's prior written consent, except as expressly provided in this Agreement.
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3.2.6 Non-Use of Materials. ABX shall not license or make any
other use of any material (including, without limitation, any Antibodies,
B-cells, hybridomas or Genetic Material) owned by GNE or ABX, or owned jointly
by GNE and ABX, in each case generated in whole or part from GNE's or ABX's
activities under this Agreement or the MTA, except as expressly provided in this
Agreement, in any case without first obtaining GNE's prior written consent. ABX
shall not, license or use any technology, know-how, intellectual property or
data owned by GNE or ABX, or owned jointly by GNE and ABX (in each case
generated in whole or part from GNE's or ABX's activities under this Agreement
or the MTA) in order to make or sell Products, except as expressly provided in
this Agreement, in any case without first obtaining GNE's prior written consent.
4. INTELLECTUAL PROPERTY
4.1 Ownership of Intellectual Property.
4.1.1 Intellectual Property Concerning Antibodies, Cells, and
Genetic Material. GNE and ABX shall jointly own all right, title and interest in
patent or patent applications directed to inventions solely or jointly made,
conceived, reduced to practice, or otherwise developed by GNE and/or ABX in the
course of performing research or development work under the MTA, this Agreement,
or the [*] Product License that are directed to (i) Antibodies, (ii) hybridoma
cells that secrete or express Antibodies, and/or (iii) Genetic Material encoding
Antibodies. This Section 4.1.1 hereby supercedes and cancels any term or
provision of the MTA that are inconsistent with this Section 4.1.1 to the extent
that such term or provision of the MTA relate to the Product Antigen. It is
understood and agreed that nothing in the Section 4.1.1 shall convey, or be
construed to convey, title in or to the biological materials themselves
embodying any such jointly-owned inventions to GNE or ABX, as the case may be.
4.1.2 Intellectual Property Concerning Other Inventions. Except
as otherwise provided in Section 4.1.1 and 2.1.5 above, on and after the
effective date of the MTA, title to any inventions (and to any patent
applications and patents thereon) by a party or parties under the MTA or this
Agreement, shall follow inventorship, which shall in turn be determined in
accordance with United States laws of inventorship and probative evidence of the
parties. Designation of inventors on any patent application hereunder is a
matter of law and shall be solely within the discretion of qualified patent
counsel of the party(ies) hereto making such invention.
4.1.3 Joint Ownership. For purposes of clarification, to the
extent that something is jointly owned under this Agreement, and except as
otherwise provided in this Agreement (including the exclusive nature of the
licenses granted by ABX hereunder), both parties shall have the right to use,
commercialize, grant and authorize sublicenses, and otherwise exploit all such
jointly-owned patents and inventions without obligation to account to, or obtain
the consent of, the other joint owner. Both parties hereto agree to promptly
disclose to the other all jointly-owned inventions under this Agreement and, on
request of the other party, will provide such information and assistance as may
be reasonably necessary to assist in the filing and prosecution of patent
applications claiming
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such inventions. The parties hereto agree to ensure that each
employee, agent, or independent contractor that conducts research using the
XenoMouse Animals, or materials derived in whole or part from the XenoMouse
Animals, will promptly disclose and assign to the parties hereto any and all
rights to jointly-owned inventions. The parties hereto agree to maintain records
in sufficient detail and in good scientific manner appropriate for patent
purposes and so as to properly reflect all work done and results achieved in
performing research under the MTA or this Agreement.
4.2 Patent Prosecution.
(a) Solely Owned. The party solely owning any invention under
Section 4.1 above shall have the sole right and responsibility (but not the
obligation), at its expense, to file, prosecute and maintain all patent
applications and patents thereon, and to conduct any interferences, oppositions,
or reexaminations thereon, and to request any reissues or patent term extensions
thereof.
(b) Jointly Owned. In the event of any invention jointly owned by
the parties under Section 4.1 above, ABX shall have the sole right and
responsibility (but not the obligation), at its expense, to file, prosecute and
maintain all patent applications (and to conduct any interferences, oppositions,
or reexaminations thereon, and to request any reissues or patent term extensions
thereof) claiming any XenoMouse Animals or any uses thereof, and GNE shall have
the sole right and responsibility (but not the obligation), at its expense, to
file, prosecute and maintain all patent applications and patents (and to conduct
any interferences, oppositions, or reexaminations thereon, and to request any
reissues or patent term extensions thereof) claiming the Product Antigen, any
Antibody or Product and/or its development, manufacture, use or sale. The party
having such rights and responsibilities hereunder is referred to as the
"Controlling Party". The Controlling Party shall: (i) provide the
non-Controlling Party with any patent application filed hereunder by the
Controlling Party promptly after such filing; (ii) provide the non-Controlling
Party promptly with copies of all substantive communications received from or
filed in patent office(s) with respect to such filings; (iii) notify the
non-Controlling Party of any interference, opposition, reexamination request,
nullity proceeding, appeal or other interparty action and review it with the
non-Controlling Party as reasonably requested; and (iv) provide the
non-Controlling Party, a reasonable time prior to taking or failing to take any
action that would substantially affect the scope of validity of rights under
such patent applications or patents thereon (including substantially narrowing
or canceling any claim without reserving the right to file a continuing or
divisional application, abandoning any patent or not filing or perfecting the
filing of any patent application) with notice of such proposed action so that
the non-Controlling Party has a reasonable opportunity to review and make
comments. If the Controlling Party fails to undertake the filing of a patent
application (or continuing or divisional application) within ninety (90) days
after a written request from the non-Controlling Party to do so, or if the
Controlling Party discontinues the prosecution or maintenance of a patent
application or patent, the non-Controlling Party at its expense may, in its
discretion, undertake such filing, prosecution or maintenance thereof, in which
case such patent application and patent thereon shall be solely owned by the
non-Controlling Party. The parties hereto shall assist each other to the extent
commercially reasonable in securing intellectual property rights resulting from
jointly owned
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inventions hereunder. As to enforcement of jointly-owned patents,
including actions against an alleged infringer, the parties hereto shall consult
with each other in good faith as to the best manner in which to proceed. The
parties agree as a basic principle that in the case of such actions against
alleged infringers, the expenses incurred and damages awarded shall be first
used to reimburse the costs and expenses (including reasonable attorneys' fees)
of the party or parties in the action, second used to reimburse ABX for any
amounts ABX is obligated to pay to third parties (if any) in respect of such
amount pursuant to applicable ABX In-Licenses, with the remainder for the
account of the party or parties that undertake such actions to the extent of
their financial participation therein. To the extent that damages are awarded
for lost sales or lost profits from the sale of Products, such damages shall be
allocated among the parties taking into account royalties that would have been
payable to ABX on the sale of such Products. Either party may withdraw from or
abandon any jointly-owned patent application or patent hereunder, on reasonable
prior written notice to the other party providing a free-of-charge option to
assume the prosecution and/or maintenance thereof.
4.3 Grant Back. It is the intent of the parties that this Agreement
shall not restrict ABX's freedom to operate regarding the practice and
commercialization of the Licensed Technology (including without limitation
XenoMouse Animals and cells, genetic material, and antibodies generated or
derived from XenoMouse Animals), except in relation to Product. Accordingly, in
the event that any patent owned or controlled by GNE that directly arises from
use of the XenoMouse Animals that has application other than for the
manufacture, use, sale, offer for sale or import of Products, GNE agrees to
grant, and hereby grants, to ABX a non-exclusive license in the Territory, with
the right to grant and authorize sublicenses, under all patents claiming such
inventions, for all fields of use other than the manufacture, use, sale, offer
for sale or import of Products, in each case on terms and conditions to be
negotiated by the parties. In the event that any patent owned or controlled by
GNE claims use of the XenoMouse Animals that has application other than for the
manufacture, use, sale, offer for sale or import of Products, GNE agrees, upon
written notice from ABX, to grant to ABX a non-exclusive, royalty-free license
in the Territory, with the right to grant and authorize sublicenses, under all
patents claiming such inventions, for all fields of use other than the
manufacture, use, sale, offer for sale or import of Products, provided, however,
that to receive the license contemplated by this sentence, ABX shall be
responsible for reasonable costs incurred by GNE relating to the filing,
prosecution and maintenance of patents claiming such invention.
5. CONFIDENTIALITY
5.1 Confidentiality. Except as expressly provided herein, the parties
agree that during the term of this Agreement 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 other than performance of
this Agreement any information furnished to it by the other party hereto
pursuant to this Agreement ("Confidential Information"), except to the extent
that it can be established by the receiving party by competent proof that such
information:
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(a) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the receiving party;
(c) 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; or
(d) was subsequently lawfully disclosed to the receiving party by
a person other than a party or developed by the receiving party without
reference to any information or materials disclosed by the disclosing party.
5.2 Permitted Disclosures. Notwithstanding Section 5.1 above and Section
5.4 below, each party hereto may nevertheless disclose the other party's
Confidential Information and the terms of this Agreement to the extent such
disclosure is reasonably necessary in filing or prosecuting patent applications,
prosecuting or defending litigation, complying with applicable laws or
regulations or otherwise submitting information to tax or other governmental
authorities, making a permitted Sublicense or publication or other exercise of
its rights hereunder or conducting clinical trials, provided that if a party is
required by law to make any such disclosure of the other party's Confidential
Information, other than pursuant to a confidentiality agreement, it will give
reasonable advance notice to the other party of such disclosure requirement and,
save to the extent inappropriate in the case of patent applications, will use
efforts consistent with prudent business judgment to secure confidential
treatment of such information prior to its disclosure (whether through
protective orders or confidentiality agreements or otherwise). It is understood
that the obligations set forth in this Article 5 are separate from GNE's
obligations under Section 2.2 above, and the expiration or nonapplicability of
GNE's obligations under Section 5.1 shall not be deemed to limit GNE's
obligations under Section 2.2.
5.3 Scientific Publications. The parties agree, as a general principle,
that it is desirable to publish the results of the research conducted by the
parties hereto under this Agreement, and agree that both parties will have the
right to publish such results. The following restrictions shall apply with
respect to the disclosure in scientific journals or publications by the parties
hereto regarding any scientific work under this Agreement (but not any
Independent Discovery or other research performed by the parties): (a) the party
publishing, or proposing to publish, such results (the "Publishing Party") shall
provide the other party (the "Non-Publishing Party") with an advance copy of any
proposed submission of a publication arising from such scientific work, not less
than thirty (30) days prior to submission or disclosure of such publication, and
the Non-Publishing Party shall have a reasonable opportunity to recommend any
changes it reasonably believes are necessary to preserve its Patent Rights or
Know-How or to protect its Confidential Information hereunder, and the
incorporation of such recommended changes shall not be unreasonably refused; and
(b) if the Non-
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Publishing Party informs the Publishing Party, within thirty (30) days
of receipt of an advance copy of a proposed publication hereunder, that such
publication includes Confidential Information of the Non-Publishing Party the
publication of which, in the Non-Publishing Party's sole judgment, could be
expected to have a material adverse effect on any of its Patent Rights or
Know-How, or on the Non-Publishing Party's business affairs, the Publishing
Party shall delete such Confidential Information of the Non-Publishing Party
from such publication and, in the case of inventions made solely by the
Publishing Party or jointly by the Publishing Party and the Non-Publishing
Party, delay publication thereof for an a time period (not to exceed ninety (90)
days) sufficient for the preparation and filing of a patent application or
application for a certificate of invention thereon, in accordance with Article 6
of this Agreement. The parties agree to confer regarding authorship of such
publications, which shall be determined in accordance with the standards for
authorship customary for peer-reviewed journals. For purposes of this Section,
the parties agree that publication of Confidential Information covered by a
filed patent shall not be required to be deleted solely due to a patent
application not having reached its 18 month publication date.
5.4 Terms of Agreement. Except as expressly provided in this Article 5,
each party hereto agrees not to make any public disclosure of the terms of this
Agreement or the identity of the Product Antigen (including, without limitation,
any press release and/or Q&A to be issued on the Option Effective Date), without
first obtaining the written approval of the other party and agreement upon the
nature and text of such public announcement or disclosure. After execution of
this Agreement, either party hereto may issue a press release, the content of
which will be agreed upon by the parties. The party desiring to make any such
public announcement shall provide the other party with a copy of the proposed
announcement for review and comment in reasonably sufficient time prior to
public release. Each party agrees that it shall cooperate fully with the other
with respect to all disclosures regarding this Agreement required under
applicable laws and regulations to the United States Securities Exchange
Commission and any other governmental or regulatory agencies, including requests
for confidential treatment of proprietary information of either party included
in any such governmental disclosure. The parties may publicly disclose
information contained in any prior public disclosure that was in compliance with
this Section without further approvals hereunder. In addition, each party agrees
not to disclose the identity of the Product Antigen to any third party under any
circumstances except if required by law, nor the terms of this Agreement or the
[*] Product License to any third party, other than to professional advisors and
financing sources, and in that case, only under confidentiality terms at least
as stringent in material respects as this Article. The parties acknowledge that,
in the event of an initial public offering by ABX, ABX may be required to file
this Agreement or information related thereto with the Securities and Exchange
Commission (the "SEC"). In that event, and thereafter, ABX shall be entitled to
comply with the disclosure requirements of the SEC, provided, however, that in
connection with any required SEC filing of this Agreement by ABX, ABX shall use
reasonable efforts to obtain confidential treatment of portions of the Agreement
from the SEC (including, without limitation, financial terms and the identity of
the Product Antigen). GNE shall have the right to review and comment on such an
application for confidential treatment insofar as it pertains to this Agreement
prior to its being filed with the SEC and ABX shall not unreasonably refuse such
comments. GNE shall provide its
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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comments, if any, on such application as soon as practicable, and in no
event later than four (4) days after such application is provided to GNE.
6. INDEMNIFICATION
6.1 GNE. GNE agrees to save, defend and hold ABX and its directors,
officers, employees, agents and Affiliates harmless from and against any suits,
claims, actions, demands, damages, liabilities, expenses or losses (including
court costs and reasonable attorneys' and experts' fees) (collectively, the
"Liabilities") resulting directly from (a) third party claims arising from any
negligence or willful misconduct of GNE (or its directors, officers, employees,
agents, or Sublicensees) or the breach of any representations or warranties of
GNE under this Agreement, or (b) any third party claims arising from GNE's or
its Sublicensee's development, making, having made, use, offer for sale, or sale
of any Product developed, manufactured, used, sold or otherwise distributed by
GNE and its Sublicensees under this Agreement; provided, however, that nothing
in this Section 6.1 shall obligate GNE to save, defend or hold harmless ABX for
any Liabilities to the extent arising from the negligence or willful misconduct
of ABX or its directors, officers, employees, or agents.
6.2 ABX. ABX agrees to save, defend and hold GNE and its directors,
officers, employees, agents and Affiliates harmless from and against any
Liabilities resulting directly from (a) third party claims arising from any
negligence or willful misconduct of ABX (or its directors, officers, employees,
or agents) or the breach of any representations or warranties of ABX under this
Agreement, or (b) any third party claims arising from any negligence or willful
misconduct of ABX or its directors, officers, employees, or agents in the course
of conducting ABX work under the Research Plan; provided, however, that nothing
in this Section 6.2 shall obligate ABX to save, defend or hold harmless GNE for
any such Liabilities to the extent arising from the negligence or willful
misconduct of GNE or its directors, officers, employees, agents or Sublicensee.
6.3 Indemnification Procedures. If any person or party entitled to
indemnification under this Article 6 (an "Indemnitee") intends to claim
indemnification under this Article 6, it shall promptly notify the indemnifying
party hereunder (the "Indemnitor") in writing of any Liability in respect of
which the Indemnitee intends to claim such indemnification, as soon as
reasonably practicable after the Indemnitee receives notice of such Liability.
Indemnitor's obligations under this Article 6 are conditioned upon the
Indemnitee permitting the Indemnitor to assume direction and control of the
defense of the Liability (including the right to settle it); provided, however,
that an Indemnitee shall have the right to retain its own legal counsel, with
the reasonable fees and expenses thereof to be paid by the Indemnitor, if
representation of such Indemnitee by the legal counsel retained by the
Indemnitor would be inappropriate due to actual or potential conflicts of
interest between such Indemnitee and such Indemnitor. Indemnitor's obligations
under this Article 6 shall not apply to amounts paid in settlement of any loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Indemnitor, which consent shall not be withheld or delayed
unreasonably. The failure to deliver written notice to the Indemnitor within a
reasonable
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time after the commencement of any third party suit, claim, action or
demand, if prejudicial to Indemnitor's ability to defend such suit, claim,
action or demand, shall relieve the Indemnitor of its obligations under this
Section 6 with respect to Liabilities that could have been defended in such
action. The Indemnitee (and its directors, officers, employees and agents) shall
cooperate fully with the Indemnitor and its legal counsel in the investigation
of any such Liability for which indemnification is sought by such Indemnitee
hereunder.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 ABX. ABX represents, warrants and covenants to GNE that:
(a) it has the full right and authority to enter into this
Agreement and grant the rights and licenses granted herein;
(b) it has not previously granted, and during the term of this
Agreement will not grant, any rights inconsistent or in conflict with the rights
and licenses granted to GNE herein, including without limitation, any right,
license in and to the Licensed Technology granted under this Agreement, or any
portion thereof, with respect to the Products or their development, manufacture,
use or sale;
(c) to its knowledge as of the Option Effective Date, there are
no existing or threatened actions, suits or claims pending against ABX with
respect to the Licensed Technology or the right of ABX to enter into and perform
its obligations under this Agreement or the [*] Product License;
(d) it will not take any action or fail to take any action under
this Agreement that will cause a breach of the GenPharm Cross-License, the
Xenotech Agreement, the Product License, or any ABX In-License; provided,
however, that it shall not be a breach of this covenant if ABX cures any breach
of such third party agreement pursuant to the cure provisions contained therein;
(e) as of the Option Effective Date, ABX has no knowledge
(without the obligation to perform due diligence) of any rights of third parties
that would interfere with the use of the ABX Know-How or practice of the ABX
Patent Rights as contemplated under this Agreement (including, without
limitation, work under the Research Plan or otherwise in the Research Field
pursuant to this Agreement or the [*] Product License), and, as of the Option
Effective Date, ABX has no knowledge (without the obligation to perform due
diligence) that any patents or patent applications within the ABX Patent Rights
are invalid or unenforceable or that their practice as licensed hereunder would
infringe patent rights of third parties, provided, however, that this
representation does not apply to possible infringements relating to the Product
Antigen;
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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(f) as of the Option Effective Date, Cell Genesys, Inc. ("CGI")
has assigned to ABX all of CGI's rights and obligations under the Xenotech
Agreement, and ABX is a party to the Xenotech Agreement in lieu of CGI;
(g) on the first date on which the Product License for the
Product Antigen between ABX and XT and the [*] Product License between ABX and
GNE are both in full force and effect, and thereafter so long as both are in
effect, ABX shall be and remain XT's exclusive licensee and sublicensee (except
with respect to the research license set forth in Article 3 of the Xenotech
Agreement and the licenses granted in the GenPharm Cross License) for all the
uses of the Licensed Technology relating to Products in the Field throughout the
Territory, and GNE shall be ABX's exclusive sublicensee thereunder for all uses
of the Licensed Technology relating to the Products in the Field throughout the
Territory, as more fully set forth in the [*] Product License and on the terms
and conditions set forth therein;
(h) it has provided to GNE on or before the Option Effective Date
complete copies of all applicable ABX In-Licenses setting forth all applicable
limitations or restrictions described in Section 3.2.3 (it being understood that
the financial terms have been redacted from some or all such copies);
(i) Based upon information provided to ABX by GNE concerning
GNE's intellectual property rights in [*] and to the best of ABX's knowledge
(without the obligation to perform due diligence), ABX has the right to obtain
from XT a Product License that is an "Exclusive Worldwide Product License" (as
defined in the Xenotech Agreement and in the form attached thereto as an
exhibit). ABX will provide GNE with a complete (excepting only for financial
terms) copy of such Product License as signed by all parties thereto, as
required under Section 3.2.2 or 3.2.3 above;
(j) Based upon information provided to ABX by GNE concerning
GNE's intellectual property rights in [*] and to the best of ABX's knowledge
(without the obligation to perform due diligence), JTI does not have the right
under the Xenotech Agreement to obtain an "Exclusive Home Territory Product
License" or a "Co-Exclusive Worldwide Product License" (as these are defined in
the Xenotech Agreement and attached thereto as exhibits) for the Product
Antigen, or any other right or license under the Licensed Technology to develop,
make and have made, use, sell, lease, offer to sell or lease, import, export,
otherwise transfer physical possession of or otherwise transfer title to
Products in the Field in the Territory, except, in each case, with respect to
the research license set forth in Article 3 of the Xenotech Agreement. ABX shall
notify GNE promptly in writing of assertion by JTI (if any) that it may have any
such rights anywhere in the Territory;
(k) ABX has nominated the Product Antigen under Section 7.1 of
the Xenotech Agreement and taken every other step necessary under the Xenotech
Agreement to obtain the right to acquire an "Exclusive World Wide Product
License" under the Xenotech Agreement;
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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(l) ABX shall, at the request of GNE, discuss with GNE ABX's
interpretation of material terms and conditions of ABX In-Licenses, including,
without limitation, any limitations on ABX's right to further transfer or grant
licenses or sublicenses to GNE to any and all rights to technology within the
scope of the ABX Patent Rights and/or ABX Know-How under any ABX In-License;
(m) ABX shall not agree to any termination, modifications or
amendments to any ABX In-Licenses that would negatively affect GNE's rights
under this Agreement without first obtaining Genentech's prior written consent,
and ABX shall notify GNE as soon as practicable of any material modification or
amendment of any ABX In-License that affects (positively or negatively) GNE's
rights or obligation under this Agreement or the [*] Product License;
(n) ABX shall provide GNE promptly with a copy of any notice of
default by ABX and/or its sublicensee under any ABX In License, and of any
notice of termination by any other party to any ABX In License; and
(o) ABX shall not use or permit others to use cells created by
GNE or ABX from immunization of XenoMouse Animals with the Product Antigen under
this Agreement, the [*] Product License, or the MTA in any way without GNE's
prior written consent nor shall ABX directly or indirectly create, incur, assume
or suffer to exist, any lien, security interest or other similar encumbrance of
any kind, or any other type of preference, as such term is used in bankruptcy
law, upon or with respect to such cells.
7.2 GNE. GNE represents, warrants and covenants to ABX that:
(a) it has the full right and authority to enter into this
Agreement and grant the rights and licenses granted herein;
(b) to its knowledge, there are no existing or threatened
actions, suits or claims pending with respect to the subject matter hereof
(including, without limitation, rights in and to the Product Antigen and/or
antibodies to the Product Antigen) or the right of GNE to enter into and perform
its obligations under this Agreement;
(c) it has not previously granted, and during the term of this
Agreement will not grant, any rights inconsistent or in conflict with the rights
and licenses granted under this Agreement; and
(d) it will not, to its knowledge, take any action or fail to
take any action that will cause a breach of the GenPharm Cross License, the
Xenotech Agreement, the Product License, or any ABX In-License.
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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(e) as of the Option Effective Date, GNE has no knowledge
(without the obligation to perform due diligence) of any rights of third parties
that would interfere with the use of the ABX Know-How or practice of the ABX
Patent Rights as contemplated under this Agreement (including, without
limitation, work under the Research Plan or otherwise in the Research Field
pursuant to this Agreement or the [*] Product License).
7.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER MAKES ANY REPRESENTATIONS AND OR EXTENDS ANY WARRANTIES TO
THE OTHER PARTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING PRODUCTS OR
THE LICENSED TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND VALIDITY
OF LICENSED TECHNOLOGY CLAIMS, ISSUED OR PENDING. ALL XENOMOUSE ANIMALS AND
MATERIALS DERIVED IN WHOLE OR PART FROM THE XENOMOUSE ANIMALS PROVIDED TO GNE BY
ABX ARE PROVIDED "AS IS," AND ABX SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO XENOMOUSE
ANIMALS AND MATERIALS DERIVED IN WHOLE OR PART FROM XENOMOUSE ANIMALS.
7.4 Effect of Representations and Warranties. It is understood that if
the representations and warranties of a party under this Article 7 are not true
and accurate and the other party incurs any suits, claims, actions, demands,
damages, liabilities, expenses or losses (including court costs and reasonable
attorneys' and experts' fees, but excluding costs and fees incurred in asserting
a claim or bringing a lawsuit between the parties hereto) as a direct result of
such falsity or inaccuracy, the party at fault shall save, defend and hold the
other party harmless from and against any such suits, claims, actions, demands,
damages, liabilities, expenses or losses.
8. TERM; TERMINATION
8.1 Term. This Agreement shall commence on the Option Effective Date
and, unless earlier terminated as provided in this Article 8, shall continue in
effect until the Effective Date (if any) of the [*] Product License between ABX
and GNE or, in the event that GNE has not exercised the Option by the Option
Expiration Deadline, on such Option Expiration Deadline.
8.2 Termination by GNE. GNE may terminate this Agreement at any time
upon sixty (60) days written notice to ABX.
8.3 Termination for Breach. Either party to this Agreement may terminate
this Agreement in the event that the other party shall have materially breached
or defaulted in the performance of any of its material obligations hereunder,
and such breach or default shall have continued for sixty (60) days after
written notice of such breach and intent to terminate this Agreement therefor
was provided to the breaching party by the nonbreaching party. Any such
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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termination shall become effective at the end of such sixty (60) day
period unless the breaching party has cured any such breach or default prior to
the expiration of the sixty (60) day period. Any such termination shall be
without prejudice to any other remedies available to, the nonbreaching party by
law or at equity (including, without limitation under Section 8.4 below). The
right of a nonbreaching party to terminate this Agreement shall not be affected
in any way by its waiver or failure to take action with respect to any previous
default. Without limiting the generality of the foregoing, if GNE timely
exercises its Option hereunder and ABX fails or is unable to enter into the
Product License and/or the [*] Product License by the deadline specified in
Section 3.2.2 above (subject to the notice and cure provisions of this Section
8.3) other than as a result of any action or inaction of GNE or its Affiliates,
ABX shall be deemed to have materially breached or defaulted in the Performance
of its material obligations under this Agreement, and GNE shall be entitled to
all available remedies conferred on it under this Agreement and by law or in
equity.
8.4 Effect of Expiration or Termination.
8.4.1 Accrued Obligations and Rights. Expiration or any
termination of this Agreement shall not release either party hereto from any
liability which at the time of such expiration or termination has already
accrued to such party or which is attributable to a period prior to such
expiration or termination, subject to the terms of this Agreement, nor preclude
either party from pursuing any rights and remedies it may have hereunder or at
law or in equity which accrued to it prior to such expiration or termination,
subject to the terms of this Agreement.
8.4.2 ABX Failure or Inability to Enter into One or More
Licenses. In the event of any breach by ABX of the type described in the last
sentence of Section 8.3 hereunder, it is understood and agreed that money
damages would not be a sufficient remedy for GNE, and GNE may be entitled to
specific performance and injunctive relief as remedies. Such remedies shall not
be deemed to be the exclusive remedies for such breach, but shall be in addition
to all other remedies available at law or in equity to GNE. Further, in the
event that ABX breaches this Agreement by not exercising its option under the
Xenotech Agreement or using its best efforts to enter into a Product License, in
each case as set forth in Section 3.2.2, ABX shall refund the amount paid to ABX
by GNE under Section 2.1.4. The parties agree that such refund will not apply if
ABX uses the required efforts but is for some other reason unable to enter into
such Product License.
8.4.3 XT. GNE and ABX agree that this Agreement, including,
without limitation, any licenses and sublicenses granted to GNE pursuant to this
Agreement, and the [*] Product License (including any licenses and sublicenses
to be granted to GNE therein) shall survive any dissolution, liquidation or
acquisition of XT, and that such licenses shall remain in full force and effect
even after any distribution, following dissolution, of the intellectual property
owned or licensed to XT, to any entity. GNE and ABX agree that any transfer of
such intellectual property to or following such dissolution shall be subject to
the licenses and sublicenses granted herein (and to be granted pursuant to the
[*] Product License, if entered into at all by the parties).
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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8.4.4 Xenotech Agreement. This Agreement, including without
limitation, any license and sublicense granted to GNE hereunder, and the [*]
Product License (if entered into by the parties) (including without limitation,
any licenses and sublicenses granted to GNE thereunder) are, except as otherwise
provided in this Agreement, independent of, and, as between GNE and ABX, shall
not be affected by, any breach or termination of the Xenotech Agreement.
8.4.5 Survival. Articles 4, 5, 6 and 9 and Sections 2.1.5, 2.2,
2.4, 2.6, 3.2.3. 3.2.4, 3.2.5, 3.2.6, 4.3, 7.3 and 8.4 shall survive the
expiration and any termination of this Agreement.
8.4.6 Destruction of XenoMouse Animals. Except as otherwise
provided in the [*] Product License (if entered into by the parties), upon
expiration or termination of this Agreement for any reason, as required under
Section 2.2(h) above GNE shall destroy each XenoMouse Animal and certify such
destruction, and shall do so within ten (10) business days after such expiration
or termination.
9. MISCELLANEOUS PROVISIONS
9.1 Governing Laws. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, without regard to conflicts
of law principles.
9.2 Waiver. It is agreed that no waiver by a party hereto of any breach
or default of any of the covenants or agreements herein set forth shall be
deemed a waiver as to any subsequent and/or similar breach or default.
9.3 Assignments. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated, in whole or part, by either party
without the prior written consent of the other; provided, however, that either
party may, without the written consent of the other, assign this Agreement to
(a) any entity to which it has acquired all or substantially all of the business
or assets of the assigning party, or (b) any successor corporation resulting
from any merger or consolidation with another corporation (including, in the
case of GNE, F. Hoffmann-La Roche Ltd or any Affiliate thereof). Notwithstanding
the foregoing, ABX shall not be obligated without its written consent to send
XenoMouse Animals to any party other than GNE. The terms and conditions of this
Agreement shall be binding on and inure to the benefit of the permitted
successors and assigns of the parties.
9.4 Independent Contractors. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be agents,
partners or joint venturers of the others for any purpose as a result of this
Agreement or the transactions contemplated thereby.
9.5 Compliance with Laws. In exercising their rights under this
Agreement, the parties shall fully comply with the requirements of any and all
applicable laws, regulations, rules and orders of any governmental body having
jurisdiction over the exercise of rights under this Agreement.
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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9.6 Further Actions. Each party agrees to execute, acknowledge and
deliver such further instruments and to do all such other acts as may be
necessary or appropriate in order to carry out the purposes and intent of this
Agreement.
9.7 No Implied Obligations. Except as expressly provided in Article 5
above, nothing in this Agreement shall be deemed to require GNE to exploit the
Licensed Technology or to prevent GNE from commercializing products similar to
or in competition with any Product, in addition to or in lieu of such Products.
9.8 Notices. Any notice, request, approval or consent required or
permitted to be given between the parties hereto shall be given in writing, and
shall be deemed to have been properly given if delivered in person, transmitted
by telecopy with machine confirmation of transmission, or mailed by first class
certified mail to the other party at the appropriate address set forth below, or
to such other address as may be designated in writing by a party from time to
time in accordance with this Agreement. Such notice, request, approval or
consent shall be deemed given (i) on the date delivered or transmitted if
delivered in person or transmitted by telecopy prior to 5 p.m. on any business
day, (ii) on the next business day following delivery or transmission if
delivered in person or transmitted by telecopy after 5 p.m. on any business day
or on any non-business day, or (iii) on the fourth business day following the
date deposited in the United States mail if sent mailed by first class certified
mail.
Genentech, Inc.: Genentech, Inc.
One DNA Way
South San Francisco, CA 94080
Attn: Corporate Secretary
Telecopy: (650) 952-9881
Abgenix, Inc.: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, California 94555
Attn: President
Telecopy: (510) 608-6511
with a copy to: Kenneth A. Clark, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
Telecopy: (650) 493-6811
9.9 Export Laws. Notwithstanding anything to the contrary contained
herein, all obligations of ABX and GNE are subject to prior compliance with
United States export regulations
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and such other United States laws and regulations as may be applicable,
and to obtaining all necessary approvals required by the applicable agencies of
the government of the United States. GNE shall be responsible for obtaining such
approvals, and shall use efforts consistent with prudent business judgment to
obtain such approvals. ABX agrees to cooperate reasonably and provide reasonable
assistance to GNE as may be reasonably necessary to obtain any required
approvals.
9.10 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision and the parties shall discuss in good faith appropriate
revised arrangements.
9.11 Force Majeure. Nonperformance of any party (except for payment
obligations) shall be excused to the extent that performance is rendered
impossible by strike, fire, earthquake, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure to perform
is beyond the reasonable control and not caused by the negligence, intentional
conduct or misconduct of the nonperforming party.
9.12 No Consequential Damages. IN NO EVENT SHALL ANY PARTY HERETO BE
LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS
AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING WITHOUT LIMITATION
LOST PROFITS ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT,
REGARDLESS OF ANY NOTICE OF SUCH DAMAGES.
9.13 Disputes. The parties recognize that disputes as to certain matters
may from time to time arise during the term of this Agreement which relate to
either party's rights and/or obligations hereunder. It is the objective of the
parties to establish procedures to facilitate the resolution of disputes arising
under this Agreement in an expedient manner by mutual cooperation and without
resort to litigation. To accomplish this objective, it is agreed that each party
will inform the other as soon as possible when it becomes aware of an area or
issue of dispute. Prior to filing or initiating any legal proceeding, the
parties agree to discuss the dispute at the organizational level at which such
dispute arises. If either party believes there has been sufficient discussion of
the matter at such level, then such party, by written notice to the other party,
may have such dispute referred to their respective chief executive officers (or,
if unavailable, a designee who is an officer of the party empowered to resolve
such disputes) for attempted resolution by good faith negotiations between such
chief executive officers within fourteen (14) days of such referral. In the
event that the chief executive officers are not able to resolve such dispute
within such fourteen (14) day period, either party may pursue whatever remedies
are available to them under this Agreement or by law.
9.14 Complete Agreement. It is understood and agreed between ABX and GNE
that this Agreement and the [*] Product License constitute the entire agreement,
both written and oral, between the parties with respect to the subject matter
hereof, and supersede and cancel all prior agreements respecting the subject
matter hereof, either written or oral, expressed or implied,
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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including, without limitation, that certain Non-Disclosure Agreement
between ABX and GNE dated as of [*], and the MTA (to the extent provided in
Sections 2.1.5, 3.2.4 and 4.1 above). No amendment or change hereof or addition
hereto shall be effective or binding on either of the parties hereto unless
reduced to writing and executed by the respective duly authorized
representatives of ABX and GNE.
9.15 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original and both together shall be deemed to
be one and the same agreement.
9.16 Headings. The captions to the several Articles and Sections hereof
are not a part of this Agreement, but are included merely for convenience of
reference only and shall not affect its meaning or interpretation.
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers as of the day and year
first above written, each copy of which shall for all purposes be deemed to be
an original.
ABGENIX, INC. GENENTECH, INC.
By: /s/ Raymond M. Withy By: [SIG]
--------------------------- ----------------------------------
Printed Name: Raymond M. Withy Printed Name: [UNREADABLE]
---------------- ------------------------
Title: Vice President,
Corporate Development Title: Vice President
---------------------- -------------------------------
Date: April 16, 1998 Date: April 16, 1998
---------------------- -------------------------------
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EXHIBIT A
RESEARCH PLAN
[*]
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 26
EXHIBIT A
RESEARCH PLAN
[*]
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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EXHIBIT B
FORM OF [*] PRODUCT LICENSE AGREEMENT
THIS [*] PRODUCT LICENSE AGREEMENT (the "Agreement") effective as of the
____ day of ____________, 1998, (the "Effective Date") is made by and between
ABGENIX, INC., a Delaware corporation ("ABX"), and GENENTECH, INC., a Delaware
corporation (hereinafter "GNE") with reference to the following facts and
circumstances.
RECITALS
GNE and ABX have entered into that certain License Option Agreement
effective as of April 6, 1998 (as defined below, the "GNE Option Agreement"),
pursuant to which GNE has certain rights to acquire a license under the Licensed
Technology; and
GNE has exercised its rights under the GNE Option Agreement to acquire
from ABX a license or sublicense, as the case may be, under the Licensed
Technology to commercialize Products in the Field, all as set forth below on the
terms and conditions herein.
NOW, THEREFORE, for and in consideration of the covenants, conditions,
and undertakings hereinafter set forth, it is agreed by and between the parties
hereto as follows:
1.0 DEFINITIONS.
For purposes of this Agreement, the terms set forth in this Article
shall have the meanings set forth below.
1.1 "ABX In-Licenses", "ABX Know-How" and "ABX Patent Rights" are
defined in Section 1.19.
1.2 "Affiliate" shall mean any entity which controls, is controlled by
or is under common control with a party hereto. An entity shall be regarded as
in control of another entity if it owns or controls at least fifty percent (50%)
of the shares of the subject entity entitled to vote in the election of
directors (or, in the case of an entity that is not a corporation, for the
election of the corresponding managing authority).
1.3 "Antibody" shall mean (i) a composition comprising a whole antibody
or fragment thereof, said antibody or fragment having been generated in whole or
part from the XenoMouse
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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Animals, and (ii) any composition comprising a whole antibody or
fragment thereof made by or on behalf of GNE or its Affiliates or Sublicensees
which is derived (directly or indirectly through single or multiple steps) from
an antibody contemplated by (i) above. ABX acknowledges that as of the Effective
Date, Genentech has already undertaken and thereafter may continue its own
research efforts (on its own or with partners) separate from this Agreement, and
such efforts may result in one or more antibodies to the Product Antigen. ABX
agrees that no protein (or any fragment, variant or derivative thereof or any or
nucleotide sequences encoding, or amino acid sequences of, any of the foregoing)
that is an "Independent Discovery" as defined in Section 1.16 shall be
considered an "Antibody" or "Product" for purposes of this Agreement, even if a
homologous sequence might also be generated in whole or in part from XenoMouse
Animals.
1.4 "BLA" shall mean a Biologics License Application, Product License
Application, New Drug Application, or other equivalent application filed with
the FDA seeking regulatory approval to market and sell a Product in the United
States for a particular indication, including, without limitation, any pricing
and/or reimbursement approvals (if any).
1.5 "Core Third Party Patent" means an issued, unexpired patent not
within the ABX Patent Rights that is infringed, or except for a license would be
infringed, by the manufacture and sale of Products or Antibodies, in each case
specifically because Antibodies were generated from XenoMouse Animals rather
than some other source (e.g., a patent that is, or except for a license would
be, infringed by manufacture and sale of Antibodies or Products but would not be
infringed by manufacture and sale of antibodies or products derived from
immunization of a wild-type mouse, or a strain of mouse other than XenoMouse,
using the same method of immunization with the Product Antigen, method of
creation of hybridomas or other antibody-secreting cells, modification (if any)
of antibodies derived from immunization, and methods and processes of
production, development, and manufacture); provided, however, that "Core Third
Party Patents" shall not include (a) any patent owned or controlled by GNE or
its Sublicensee, or any Affiliate of GNE or GNE's Sublicensee, (b) any patent
that has been held invalid, unpatentable, unenforceable or revoked in a decision
of a court or other governmental body of competent jurisdiction that is
unappealable or unappealed within the time frame allowed for appeal, or (c) any
patent that has been rendered unenforceable or invalid through disclaimer,
reissue or otherwise.
1.6 "Derived" or "derived," for purposes of determining when an antibody
or fragment thereof has been "derived" from an Antibody, shall mean: (a)
resulting from a program of synthesis or modification or selection based on an
Antibody; (b) resulting from a program of synthesis or modification or selection
based on nucleotide or amino acid sequence information obtained from an Antibody
(or Genetic Material encoding an Antibody); [*].
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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1.7 "Europe" shall mean Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Ireland, Italy, Luxembourg, Monaco, Netherlands, Portugal,
Spain, Sweden, Switzerland, and the United Kingdom.
1.8 "Excluded Technology" is defined in Section 1.19.4.
1.9 "Field" shall mean the use of Products for [*].
1.10 "FDA" shall mean the United States Food and Drug Administration,
and any successor agencies thereto.
1.11 "Foreign Marketing Application" shall mean all applications for
regulatory approval filed with any Foreign Regulatory Authority necessary for
the marketing and sale of any Product for a particular indication in the
applicable country or regulatory jurisdiction (other than the FDA in the United
States), including, without limitation, any pricing and/or reimbursement
approvals (if any).
1.12 "Foreign Regulatory Authority" shall mean any applicable agency,
department, bureau or other governmental entity or authority (and any successors
thereto) of any country or regulatory jurisdiction in the Territory (other than
the FDA in the United States) having responsibility in such country or
regulatory jurisdiction over any Foreign Marketing Application in such country
or regulatory jurisdiction.
1.13 "Genetic Material" shall mean a nucleotide sequence, including DNA,
RNA, and complementary and reverse complementary nucleotide sequences thereto,
whether coding or noncoding and whether intact or a fragment.
1.14 "GenPharm Cross License" shall mean that certain Cross License
Agreement entered into by and between ABX, JTI, XT, Cell Genesys, Inc., and
GenPharm International, Inc. effective as of March 26, 1997, as the same may be
amended from time to time.
1.15 "GNE Option Agreement" shall mean that certain Research License and
Option Agreement entered into by and between ABX and GNE effective as of the
Option Effective Date (as defined therein), as the same may be amended from time
to time.
1.16 "IND" shall mean an Investigational New Drug Application filed with
FDA, or any similar filing with any Foreign Regulatory Authority, to commence
human clinical testing of any Product in any country in the Territory.
1.17 "Independent Discovery" shall mean any protein (or any fragment,
variant or derivative thereof or any nucleotide sequences encoding, or amino
acid sequences of, any of the foregoing) or other material, information and/or
development that both (a) is discovered or obtained by GNE (on its own or with
partners) without the use of any ABX Know-How, and (b) does not
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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incorporate or include any Antibody, in any case as demonstrated by
competent written records of GNE (and/or its partners) which may be supported or
explained by additional testimonial evidence.
1.18 "JTI" shall mean Japan Tobacco Inc., a Japanese corporation.
1.19 "Licensed Technology" shall mean ABX Patent Rights and ABX
Know-How; provided, however, that Licensed Technology shall not include Excluded
Technology.
1.19.1 "ABX Patent Rights" shall mean any and all patent
applications and patents (including inventor's certificates and utility models)
throughout the Territory, including any substitutions, extensions, reissues,
reexaminations, renewals, divisions, continuations, and continuations-in-part of
any of the foregoing, that are owned or controlled by ABX (solely or jointly,
including under any ABX In-License) as of the Effective Date or hereafter during
the term of this Agreement, and as to which ABX has the right to transfer or
grant licenses or sublicenses (including as permitted under any ABX In-License),
to the extent that any of the foregoing relates to (a) any XenoMouse Animals
and/or any uses thereof, (b) the Product Antigen, or (c) any Antibody or
Product. "ABX Patent Rights" shall include, without limitation, the patents and
patent applications listed on Attachment A attached hereto and incorporated
herein. ABX shall notify Genentech promptly in writing of any changes to
Attachment A during the term of this Agreement (e.g., issuance of new patents,
filing of new patent applications, abandonment of existing filings, etc.), so
that the parties may update Attachment A by amendment of this Agreement.
1.19.2 "ABX Know-How" shall mean any and all XenoMouse Animals
and any and all processes, techniques, ideas, technical information and any
other information or materials, whether or not any of the foregoing is
patentable, that are owned or controlled by ABX (solely or jointly, including
under any ABX In-License) as of the Effective Date or hereafter during the term
of this Agreement, and as to which ABX has the right to transfer or grant
licenses or sublicenses (including as permitted under any ABX In-License), to
the extent that any of the foregoing relates to the immunization of XenoMouse
Animals with the Product Antigen to generate any Antibody hereunder. "ABX
Know-How" shall not include any of the foregoing which is generally
ascertainable from publicly available information, or that was known to GNE
prior to disclosure to GNE by ABX, or which GNE obtained independently (on its
own or with partners) and not in violation of any obligation of confidentiality
owed to ABX or any third party, in any case as demonstrated by competent written
records of GNE (and/or its partners) which may be supported or explained by
additional testimonial evidence. All "ABX Know-How" shall be treated as
"Confidential Information" of ABX as provided in Article 8 of this Agreement. As
of the Effective Date, the parties have agreed that ABX shall transfer to or
provide GNE with the ABX Know-How identified in Attachment B attached hereto and
incorporated herein.
1.19.3 "ABX In-Licenses" shall mean any and all licenses,
sublicenses or other agreements, as in effect as of the Effective Date or
hereafter during the term of this Agreement (as the same may be amended from
time to time), under which ABX has rights to technology (whether or not
patentable) that is within the scope of the ABX Patent Rights and/or the ABX
Know-How.
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The parties agree that any and all such rights pursuant to any
ABX In-License are included in the ABX Patent Rights or the ABX Know-How, as the
case may be, but not to the extent that ABX is not permitted under the terms of
the applicable ABX In-License to further transfer or grant licenses or
sublicenses of such rights. "ABX In-Licenses" shall include, without limitation,
the Xenotech Agreement, the Product License for the Product Antigen between XT
and ABX, the GenPharm Cross License, and the other agreements listed on
Attachment C attached hereto and incorporated herein. ABX shall notify Genentech
promptly in writing of any changes to Attachment C during the term of this
Agreement (e.g., any new agreements, any amendments to any agreements, etc.), so
that the parties may update Attachment C by amendment of this Agreement.
1.19.4 "Excluded Technology" shall mean any intellectual property
or technology or other proprietary rights of ABX in or to: (a) all antigens
other than the Product Antigen, including without limitation, (i) compositions
of such antigens or of Genetic Materials encoding such antigens, (ii) uses of
such antigens, (iii) antibodies or other compositions that bind to such antigens
(except Antibodies which bind to the Product Antigen), Genetic Materials
encoding such antibodies or compositions, and cells that express or secrete such
antibodies or compositions, and (iv) uses of such antibodies or compositions;
and (b) methods to discover novel antigens and methods of using antigens other
than to create antibodies.
1.20 "Major Country" shall mean the United States, Japan, the United
Kingdom, France, Germany, Spain, or Italy.
1.21 "MTA" shall mean that certain Material Transfer Agreement entered
into by ABX and GNE and effective as of [*], as the same may be amended from
time to time.
1.22 "Net Sales" shall mean [*] by GNE or its Affiliates and
Sublicensees for sales of Product to non-Affiliate customers, [*], with respect
to such sales [*], as reflected in [*] of GNE and its Affiliates or
Sublicensees, [*].
1.22.1 Sales Among GNE and Sublicensees. Net Sales shall not
include [*], provided that Net Sales shall include the [*] of such Products.
1.22.2 Combination Products. In the event that a Product is sold
in combination as a single product with another product or component, Net Sales
from such combination sales for purposes of calculating the amounts due under
this Agreement shall be [*]. In the event that no such separate sales are made
in the same quarter by GNE or its Sublicensee, Net Sales
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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for royalty determination shall be [*].
1.23 "Option Effective Date" shall have the meaning set forth in the GNE
Option Agreement.
1.24 "Phase II Trial" shall mean a human clinical trial prospectively
designed to generate data evidencing the safety, dose ranging and preliminary
efficacy of a Product for a particular indication sufficient (if successful) to
commence a Phase III trial for the Product for the indication, and that would
otherwise satisfy the requirements of 21 CFR 312.21(b). "Initiation" of a Phase
II Trial shall be deemed to occur upon the administration of such drug or
placebo to the first patient in such trial.
1.25 "Phase III Trial" shall mean a human clinical trial prospectively
designed to demonstrate with statistical significance whether a Product is safe
and effective for use in a particular indication in a manner sufficient (if
successful) to file a BLA with the United States Food and Drug Administration
(including any successor agency, the "USFDA") for the marketing and sale of the
Product for the indication, and would otherwise satisfy the requirements of 21
CFR 312.21(c). "Initiation" of a Phase III Trial shall be deemed to occur upon
the administration of study drug or placebo to the first patient in such trial.
1.26 "Product" shall mean any product which incorporates (a) an Antibody
that binds to the Product Antigen or (b) Genetic Material encoding such an
Antibody wherein said Genetic Material does not encode multiple Antibodies.
1.27 "Product Antigen" and "[*]" shall mean [*].
1.28 "Product License" shall mean an "Exclusive Worldwide Product
License" as defined in the Xenotech Agreement (and in the form attached thereto
as an exhibit) granted from XT to ABX pursuant to the terms of the Xenotech
Agreement and permitting ABX, among other things, to commercialize Products
throughout the world for [*].
1.29 "Research Field" shall have the meaning set forth in the GNE Option
Agreement.
1.30 "Research Plan" shall mean the research plan attached to the GNE
Option Agreement as Exhibit A thereto and incorporated therein , which is hereby
incorporated into this Agreement also. The parties may amend the Research Plan,
from time to time, by mutual agreement in writing.
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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1.31 "Sublicensee" shall mean a third party that GNE grants rights under
the Licensed Technology to develop, make, use and/or sell Products, including,
without limitation, a third party to whom GNE grants the right to distribute
Product, provided that such third party also has responsibility for marketing
and promotion of Product within the applicable territory. As used herein, a
"Sublicense" shall mean an agreement or arrangement between GNE and any
Sublicensee pursuant to which such rights of such Sublicensee have been granted.
1.32 "Territory" shall mean all the countries and territories of the
world.
1.33 "Therapeutically Active" shall mean that a compound or agent has
activity as a therapeutic agent, or directly or indirectly acts to increase,
enhance, catalyze, enable, protect, target or deliver a Product or the activity
of a Product, but shall not include any diluent, vehicle, adjuvant or other
ingredient (other than a Product) that does not have any, or only incidental,
therapeutic properties.
1.34 "[*] Product License" shall mean this [*] Product License Agreement
entered into by and between ABX and GNE effective as of the Effective Date, as
the same may be amended from time to time.
1.35 "United States" shall mean the United States of America and its
territories and possessions.
1.36 "Valid Patent Claim" shall mean a claim in an [*] within the ABX
Patent Rights that (a) has not been held invalid, unpatentable, unenforceable or
revoked in a decision of a court or other governmental body of competent
jurisdiction that is unappealable or unappealed within the time frame allowed
for appeal, (b) has not been rendered unenforceable or invalid through
disclaimer, reissue or otherwise and (c) is [*].
1.37 "XenoMouse" and "XenoMouse Animals" shall mean both (a) all
transgenic mice provided by ABX to GNE for immunization with the Product Antigen
under the GNE Option Agreement or this Agreement and (b) all transgenic mice
immunized with the Product Antigen by ABX under the MTA or the GNE Option
Agreement on or before the Effective Date of this Agreement.
1.38 "Xenotech Agreement" shall mean that certain Master Research
License and Option Agreement entered into by JTI, XT and Cell Genesys, Inc.
effective as of June 28, 1996, as the same may be amended from time to time.
1.39 "XT" shall mean Xenotech, L.P., a California limited partnership.
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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2.0 LICENSE GRANT
2.1 Grant of Rights. Subject to the terms and conditions of this
Agreement, ABX hereby grants to GNE an exclusive (even as to ABX) license or
sublicense, as the case may be, under the Licensed Technology, to research and
develop, make and have made Products in the Field in the Territory and to use,
sell, lease, offer to sell or lease, import, export, otherwise transfer physical
possession of or otherwise transfer title to Products in the Field in the
Territory. For purposes of clarification, it is understood and agreed that the
licenses and sublicenses granted herein shall not include any right to make or
sell (or lease, or offer to sell or lease, or otherwise transfer title to) any
transgenic animal or the right to sell (or lease, or offer to sell or lease, or
otherwise transfer title to) Antibody-secreting cells.
2.2 Sublicenses. GNE may grant a Sublicense of any or all of its rights
under Section 2.1 to (a) Affiliates of GNE or (b) to any other third party on
written notice to ABX. It is understood that any such Sublicense shall be
subject and subordinate to the terms and conditions of this Agreement, and that
GNE shall remain responsible for all payments due to ABX hereunder with respect
to Net Sales of Products by any such Sublicensee. It is understood that GNE
shall not have the right to grant any Sublicense except as provided above, and
notwithstanding the foregoing, shall in no event have the right to Sublicense
any right under this Agreement in or to (i) a XenoMouse Animal, or (ii) other
transgenic animal covered by the Licensed Technology.
2.3 Third Party Rights. It is understood and agreed that the grant of
rights under this Article 2 shall be subject to and limited in all respects by
the terms of the applicable ABX In-License(s) pursuant to which ABX acquired or
does acquire any Licensed Technology, including, without limitation, any rights
granted to or retained by GenPharm International, Inc. under the GenPharm Cross
License, and that all rights or sublicenses granted under this Agreement shall
be limited to the extent that ABX may grant such rights and sublicenses under
such ABX In-Licenses. Further, the parties acknowledge that while ABX is
granting GNE an exclusive license to certain of its rights, ABX's rights may not
be exclusive from ABX's licensors.
2.4 Continuation of Research. It is understood and agreed that during
the term of this Agreement, GNE and ABX may continue the research activities set
forth in the Research Plan as set forth in this Section 2.4.
2.4.1 Supply and Use of XenoMouse Animals. In the event that the
parties enter into this Agreement before ABX has provided to GNE the XenoMouse
Animals ABX is required to provide to GNE pursuant to Section 2.1.2 of the GNE
Option Agreement, or in the event that ABX and GNE mutually agree in writing
that ABX will provide additional sterilized male XenoMouse Animals to GNE under
this Agreement, ABX agrees to continue to provide XenoMouse Animals to GNE in
accordance with Section 2.1.2 of the GNE Option Agreement or as agreed by
writing by the parties, subject to all terms and conditions set forth in
Sections 2.1 and 2.2 of the GNE Option Agreement. It is further agreed that GNE
may continue to use any XenoMouse Animals provided by ABX under the GNE Option
Agreement, in accordance with all terms and conditions set forth in
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Sections 2.1 and 2.2 of the GNE Option Agreement, to continue
GNE's research activities within the Research Field as set forth in this Section
2.4. GNE shall not transfer any XenoMouse Animal to any third party, including
any Sublicensee, without the express written consent of ABX. It is understood
that during the term of this Agreement, GNE may require additional XenoMouse
Animals for performance under this Agreement. The parties agree to engage in
good faith discussion to determine reasonable quantities, if any, of such
XenoMouse Animals to be provided by ABX to GNE for such performance.
2.4.2 Research Activities. During the term of this Agreement, the
parties will conduct such collaborative research and development of Products as
they may mutually agree upon in writing in the Research Plan (as the same may be
amended from time to time). During the term of this Agreement, GNE and ABX shall
each update the other, as requested by the other, as to the status of any
research activities of the party under the Research Plan.
2.4.3 Ownership of Materials and Data. It is understood and
agreed that:
(a) ABX shall solely own all XenoMouse Animals, Genetic Material
encoding such XenoMouse Animals, hybridomas and B cells.
(b) GNE shall own all Antibodies, Genetic Material encoding
Antibodies, and all reagents, samples, data, results, technical information,
know-how, preclinical and/or clinical testing data and any other non-patentable
information resulting from the parties' use of the Licensed Technology related
to the Product Antigen under the MTA or under this Agreement. To the extent that
ABX owned any of the foregoing prior to the Effective Date of this Agreement
under the terms of the GNE Option Agreement, ownership shall transfer from ABX
to GNE as of the Effective Date of this Agreement.
(c) With respect to any materials (including, without limitation,
all Antibodies, hybridomas or Genetic Material) generated in whole or in part
from immunization of XenoMouse Animals with the Product Antigen and/or data made
or generated under the MTA, this Section 2.4.3 hereby supersedes and cancels any
terms or provisions in the MTA inconsistent with this Section 2.4.3 or any other
term of this Agreement. The transfer of physical possession of any materials
owned by, and the physical possession and use of such materials and/or data by,
GNE or ABX, as the case may be, shall not be (nor be construed as) a sale,
lease, offer to sell or lease, or other transfer of title of such materials
and/or data to GNE or ABX, as the case may be.
2.5 No Other Rights; No License to Other Therapeutically Active
Components. No rights other than those expressly set forth in this Agreement are
granted to either party hereunder, and no additional rights shall be deemed
granted to either party by implication, estoppel or otherwise. It is understood
and agreed that, although a Product licensed hereunder may contain other
components (including without limitation, other Therapeutically Active
components) in conjunction with or in addition to an Antibody that binds to [*]
or Genetic Material encoding such an Antibody, the licenses and rights granted
under this Agreement shall not be construed to convey, and shall not
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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convey, any licenses or rights under the ABX Patent Rights with respect
to the manufacture, use, or sale of any such component other than an Antibody
that binds to [*] or Genetic Material encoding such an Antibody.
2.6 No Products Other Than Products. GNE shall not sell, lease, offer to
sell or lease, or otherwise transfer title to any materials derived in whole or
part from the XenoMouse Animals (including, without limitation, Antibodies,
Antibody-secreting cells and Genetic Materials encoding the foregoing) other
than as Products in accordance with this Agreement.
3.0 CONSIDERATION.
3.1 License Fee. In consideration of the license rights granted herein
to GNE, within fifteen (15) days after the Effective Date, GNE shall pay to ABX
a [*] license fee in the amount of [*], in accordance with the payment
provisions of Section 4.3 below.
3.2 Milestone Payments.
3.2.1 Amounts. In further consideration of the license rights
granted herein to GNE, within thirty (30) days following the first achievement
by GNE (or any of its Sublicensees) of each of the following milestones with
respect to any Product under this Agreement, GNE shall pay to ABX the
corresponding milestone payment set forth herein, in accordance with the payment
provisions of Section 4.3 below:
<TABLE>
<CAPTION>
Milestone Payment
--------- -------
<S> <C>
[*]
A [*]
B [*] [*]
C [*] [*]
D [*] [*]
E [*] [*]
</TABLE>
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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In the event that milestone C, D, or E is met, and at such time either milestone
A or milestone B has not been met, the payment for such unmet milestone(s) shall
be due. It is understood and agreed that (i) GNE shall not be obligated to pay
to ABX the milestone payments set forth in this Section 3.2.1 more than once for
each of milestones A, B, C, D, and E under this Agreement, irrespective of how
many Products hereunder achieve such milestone.
3.2.2 [*]. If, before or during the term of this Agreement, the
Product License between ABX and XT is modified for any reason such that the [*]
for purposes of the license granted to GNE under this Agreement [*] shall refund
any remaining amount at that point in cash.
3.2.3 Potential Readjustments. Upon request of either party, the
parties shall discuss in good faith and may agree to amend this Agreement to
provide an option for GNE to make milestone payments for the events set forth in
milestones C, D and/or E above in amounts greater than those set forth in
milestones C, D and/or E above, in exchange for royalties on Net Sales of
Products in the countries and territories covered by such milestones lower than
those set forth in Section 3.3 below.
3.2.4 [*]. The milestone payments set forth in Section 3.2.1
shall be [*] except as otherwise provided in Section 3.2.2 above, but may be [*]
as set forth in Section 3.3.5 below.
3.3 Royalties. GNE or its Sublicensee shall notify ABX of the date of
commercial introduction of the first Product into any country in the Territory,
which shall mean, on a country-by-country basis in the Territory, the date of
first commercial sale (other than for purposes of obtaining Regulatory Approval)
of the first Product by GNE or any Sublicensee in such country (hereinafter, the
"Royalty Commencement Date"). In consideration of the license rights granted
herein, GNE shall pay to ABX a royalty on Net Sales of Products as set forth
herein:
3.3.1 Countries With Issued Patents. (a) Commencing as to each
country in the Territory on the Royalty Commencement Date for the first Product
in such country, GNE shall pay ABX a running royalty equal to [*] of Net Sales
by GNE and its Sublicensees of Products in such country (i) if there is a Valid
Patent Claim within the ABX Patent Rights related to the XenoMouse Animals that
covers GNE's manufacture, use or sale of such Products within the country where
such Products are made, used or sold or (ii) if there [*]
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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[*], such [*] running royalty to be in effect for the life of
such Valid Patent Claim. A country in which the above [*] royalty applies is
referred to herein as a "Patent Country."
(b) It is understood that if, during the term of this
Agreement, one or more Valid Patent Claims is or are revoked in a decision of a
court or other governmental body of competent jurisdiction that is unappealable
or unappealed within the time from allowed for appeal (hereinafter, "Revoked
Claim(s)"), such Revoked Claim(s) shall not be considered Valid Patent Claim(s)
for purposes of determining royalties owed under this Agreement on Net Sales of
Products thereafter.
(c) Notwithstanding anything to the contrary in this
Agreement or the GNE Option Agreement, including, without limitation, anything
contained in Sections 1.19, 3.3.1(a), 3.3.3 or 6.1 of this Agreement, [*].
3.3.2 Non-Patent Countries. Commencing as to each country in the
Territory on the Royalty Commencement Date for the first Product in such
country, GNE shall pay ABX a running royalty equal to [*] of Net Sales of any
Product by GNE and its Sublicensees not covered by Section 3.3.1(a) above.
3.3.3 Countries With [*]. In the event that the dollar amount of
net royalties owed by ABX [*] under the ABX In-Licenses for Net Sales of
Products by GNE and its Sublicensees in any [*] (as defined below) [*] (after
all offsets and/or credits) by GNE to ABX under the provisions of this Section
3.3 (other than this Section 3.3.3) for such Net Sales, then GNE agrees to pay
to ABX [*] under the ABX In-Licenses to the extent the net royalties owed by ABX
[*] are attributable to [*], as set forth in this Section 3.3.3, in lieu of the
amounts that GNE would otherwise owe (after all offsets and/or credits). ABX
shall invoice GNE for any such amounts [*] on such Net Sales within [*] after
receiving the report from GNE under Section 4.1 setting forth the quarterly Net
Sales of Products in each country and/or any annual reconciliation regarding
such royalties, and GNE shall pay such amounts to ABX within [*] after delivery
of such invoice. It is understood that such invoice will not specify the [*] for
which the invoice is sent, or the [*]. As used in this Section 3.3.3, "[*]"
means any country or territory in the Territory in which there is a [*] within
the ABX Patent Rights but the conditions set forth in [*] are not met (and
therefore such country is not a [*]). It is understood and agreed that nothing
in this Section 3.3.3 shall obligate GNE to pay a total royalty to ABX on Net
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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Sales of a Product in excess of the royalty amount that would be
due if such Net Sales were subject to the [*] royalty provided in Section 3.3.1
and any applicable offsets under Sections 3.3.4 and 3.3.5, subject to the
"Patent Country" floor royalty amounts set forth in Sections 3.3.4 and 3.3.5 for
such Net Sales.
3.3.4 Third Party Royalty Offset.
(a) In the event that GNE or any of its Sublicensees is
required to pay to a third party (other than an Affiliate of GNE or its
Sublicensees) during the term of this Agreement royalties with respect to a
Product under agreements for patent rights or other technologies that GNE or its
Sublicensee reasonably determines are necessary to license with respect to such
Product, then GNE may deduct such royalty amounts actually paid by GNE or its
Sublicensee from the royalties owed to ABX for Net Sales of such Product
pursuant to this Section 3.3; provided, however, that the third party royalty
offset under this Section 3.3.4 if any, shall be applied first to determine the
applicable royalty amount on Net Sales of a Product for each quarter in
accordance with the table set forth below and down to the royalty floors set
forth therein, which floor royalties will be established on a Region-by-Region
basis (as such Regions are defined in Section 3.3.4(b) below), and thereafter
the applicable milestone credits described in Section 3.3.5 shall then be
applied for such quarter.
[*] [*] [*]
(b) For purposes of this Section 3.3.4, a "Region" shall
mean [*].
(c) For purposes of determining the applicable floor
royalty under this Section 3.3.4, the Annual Net Sales for a Region shall
include all Net Sales of all Products in all countries and territories in such
Region. For such purposes, annual Net Sales of all Products within a Region
shall be [*], and the floor shall be applied to the Net Sales of [*] in the
corresponding Net Sales level for such Region. Notwithstanding the foregoing,
the royalty payable hereunder shall be reconciled on a calendar yearly basis
using actual aggregate totals
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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of annual Net Sales for all countries and territories in
each Region for each full calendar year during the term of this Agreement, and
for a given calendar year such reconciliation shall be completed in time to be
included in the next royalty report to ABX under Section 4.1 below. If as a
result of such reconciliation it is determined that GNE has underpaid ABX
royalties for a calendar year, GNE shall pay the shortfall for such calendar
year promptly to ABX. If as a result of such reconciliation it is determined
that GNE has overpaid ABX royalties for a calendar year, GNE shall be entitled
to credit [*] of such overpaid amount against future royalties due to ABX
hereunder; provided, however, that if GNE has no further obligation to pay
royalties under this Agreement anywhere in the Territory, ABX shall refund any
such overpayment within [*] following such reconciliation.
3.3.5 Milestone Credit Offset. Certain milestone payments set
forth in Section 3.2 that have been paid to ABX shall be creditable against
royalty payments due to ABX as described in this Section 3.3.5.
(a) [*]. [*] of milestone payments paid to ABX for
achievement of milestone B set forth in Section 3.2.1 above shall be credited
against royalties due to ABX under Section 3.3 in respect of Net Sales of
Products in the Territory.
(b) [*]. [*] of each of milestone payments paid to ABX for
achievement of milestones C, D, and E set forth in Section 3.2.1 shall be
credited against royalties due to ABX under Section 3.3 in respect of Net Sales
of such Product in the countries and territories for which such milestones apply
(i.e., [*] shall be credited against royalties on Net Sales of Products [*] (as
defined in Section [*]); [*] shall be credited against royalties on Net Sales of
Products [*] (as defined in Section [*]); and [*] shall be credited against
royalties on Net Sales of Products in [*]).
(c) Limitation on Milestone Credit. Notwithstanding the
foregoing Sections 3.3.5(a) and (b), the milestone credits described in this
Section 3.3.5 shall not reduce the royalty amounts paid to ABX under this
Section 3.3 in respect of Net Sales of Products in any given quarter during the
term of this Agreement, to an amount below the following "floor" royalties, on a
country-by-country basis:
A Floor Royalty on Net Sales of Products in Country
with Valid Patent Claim Covering Product (Section 3.3.1): [*]
B Floor Royalty on Net Sales of Products in All Other
Countries (Section 3.3.2): [*]
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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However, the foregoing limitation on milestone credits per quarter hereunder
shall not preclude carrying forward unused milestones credits into future
quarter(s) until the entire available credit hereunder has been used.
3.3.6 Length of Term of Royalty Obligations. GNE's obligation to
pay royalties on Net Sales of Products under this Agreement shall commence on a
country-by-country basis on the Royalty Commencement Date for such country as
defined in Section 3.3 above, and continue thereafter on a country-by-country
basis until the later of (a) ten (10) years after the Royalty Commencement Date
in such country or (b) expiration, in Patent Countries (as defined in Section
3.3.1), of the last-to-expire of the Valid Patent Claims in the ABX Patent
Rights that causes GNE to owe the [*] royalty described in Section 3.3.1 (before
any offsets or credits) in such country.
3.3.7 Single Royalty. Only one royalty shall be payable with
respect to any Product hereunder, regardless of how many Valid Patent Claims or
Pending Patent Applications within the ABX Patent Rights cover such Product.
3.3.8 [*]. ABX agrees to promptly inform GNE, on a
country-by-country basis, in the event ABX [*], arising from the use,
manufacture or sale of any Product in such country hereunder, and shall inform
GNE of the [*]. GNE may, thereafter, [*]. In the event that GNE has already paid
to ABX royalties on Net Sales in such countries for the period after ABX is [*].
It is understood and agreed that nothing in this Section 3.3.8 shall reduce the
payment obligations set forth in Sections 3.3.3, 3.6.1 or 3.6.2 of this
Agreement.
3.4 Discounting. If GNE or its Sublicensee sells any Product to a third
party who also purchases other products or services from GNE or its Sublicensee,
GNE agrees not to, and to require its Sublicensee not to, discount the sales
price of the Products to a greater degree than GNE or its Sublicensee,
respectively, generally discounts the price of its other products to such
customer.
3.5 Royalties To Be Paid By ABX. Subject to the terms and conditions of
this Agreement, including without limitation GNE's payment of royalties as set
forth herein, ABX shall be responsible for paying all amounts owed to third
parties in respect of Net Sales of Products by GNE and its Sublicensees in
accordance with this Agreement under the Agreements set forth in
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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Attachment C attached hereto and incorporated herein. GNE may not offset
such payments under Section 3.3.4.
3.6 Core Third Party Patents. If either party becomes aware of any Core
Third Party Patent during the term of this Agreement, or any pending patent
application that would be a Core Third Party Patent if issued, such party shall
promptly notify the other party and, except to the extent that such party is
prohibited under a duty of confidentiality from disclosing such information,
provide a reasonably detailed summary of its knowledge regarding such patent or
patent application (including, by way of example and without limitation, the
identity of the person that owns or controls such patent, the subject matter of
the patent or application, and any available information about terms offered or
asked with respect to licenses under such patents).
3.6.1 ABX. GNE agrees to [*] under any Core Third Party Patent;
provided, however, that neither ABX nor GNE (nor its Sublicensees) shall be
obligated [*], and provided, further, that if ABX elects not [*] it shall
promptly notify GNE of such election, and GNE shall thereafter be [*] on its own
behalf. In the absence of such an election, on and after the date falling [*]
after either party first notifies the other of the Core Third Party Patent, GNE
[*] directly [*]. If ABX [*] such patent, ABX will be responsible to [*] owed
thereunder for the Net Sales of Products in the Territory by GNE and its
Sublicensees; provided, however, in the event that the [*], as set forth in this
Section 3.6.1, [*]; and provided, further, that if both ABX and GNE [*], GNE
shall not thereafter [*] Core Third Party Patent by ABX under this Agreement,
and GNE shall [*], to be offset as provided in Section 3.6.2 below. ABX shall
invoice GNE for any such amounts [*] on such Net Sales within [*] after
receiving the report from GNE under Section 4.1 setting forth the quarterly Net
Sales of Products in each country and/or any annual reconciliation regarding
such royalties, and GNE shall pay such amounts to ABX within [*] after delivery
of such invoice. It is understood that such invoice will not [*] for which the
invoice is sent, or the [*]. The parties hereto agree to discuss and negotiate
in good
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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faith regarding the manner in which the [*].
3.6.2 GNE. If GNE or its Sublicensee [*] under a Core Third Party
Patent, GNE may [*]; provided, however, that (a) the [*]. It is understood that
the [*]; provided, however, that in the event that the [*]. ABX shall invoice
GNE for any such amounts [*] on such Net Sales within [*] after receiving the
report from GNE under Section 4.1 setting forth the quarterly Net Sales of
Products in each country and/or any annual reconciliation regarding such
royalties, and GNE shall pay such amounts to ABX within [*] after delivery of
such invoice. It is understood that such invoice will not specify the [*] for
which the invoice is sent, or the [*].
4.0 ACCOUNTING AND RECORDS.
4.1 Royalty Reports; Payments, Invoices. After the Royalty Commencement
Date in any country in the Territory, GNE agrees to make quarterly written
reports to ABX within sixty (60) days after the end of each calendar quarter,
stating in each such report the number, description, and aggregate Net Sales of
Product sold during the calendar quarter upon which a royalty is payable under
Article 3 above and, if applicable, the annual royalty reconciliation under
Section 3.3.3(c) above. Concurrently with the making of such reports, GNE shall
pay to ABX all amounts payable pursuant to Article 3 above, in accordance with
the payment provisions of Section 4.3. For purposes of determining when a sale
of any Product occurs under this Agreement, the sale shall be deemed to occur on
the earlier of the date the Product is shipped, or the date of the invoice to
the purchaser of the Product.
4.2 Records; Inspection.
4.2.1 GNE. GNE shall keep (and require its Sublicensees to keep)
complete, true and accurate books of account and records for the purpose of
determining the royalty amounts payable to ABX under this Agreement. Such books
and records shall be kept at the principal place
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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of business of GNE or its Sublicensees, as the case may be, for
at least three (3) years following the end of the calendar quarter to which they
pertain. Such records of GNE or its Sublicensees will be open for inspection
during such three-year period by an independent certified public accountant
representing ABX (which representative may also represent XT) and reasonably
acceptable to GNE for the purpose of verifying the royalty statements. GNE shall
require each of its Sublicensees to maintain similar books and records and to
open such records for inspection during the same three (3)-year period by such
representative of ABX for the purpose of verifying the royalty statements. All
such inspections may be made no more than once each calendar year at reasonable
times mutually agreed by GNE and ABX. The representative of ABX will be obliged
to execute a reasonable confidentiality agreement prior to commencing any such
inspection. The results of any inspection hereunder shall be provided to both
parties, and GNE shall pay any underpayment to ABX within thirty (30) days. Any
overpayment may be credited against future royalty amounts due to ABX hereunder;
provided, however, that if there is no further obligation to pay royalties
hereunder anywhere in the Territory, ABX shall refund any such overpayment
within thirty (30) days. Inspections conducted under this Section 4.2.1 shall be
at the expense of ABX, unless a variation or error producing an increase
exceeding [*] of the amount stated for any period (after taking into account any
applicable annual reconciliation) is established in the course of any such
inspection, whereupon all costs of such audit of such period will be paid by
GNE. Upon the expiration of three (3) years following the end of any calendar
year, the calculation of royalties payable with respect to such year shall be
binding and conclusive, and GNE shall be released from any liability or
accountability with respect to royalties for such year; provided, however, that
if ABX has demanded payment of additional royalties it claims have not been
properly paid under this Agreement, or if there is a dispute between the parties
regarding the amount of royalties due, prior to the expiration of the third
calendar year following the calendar year in question, then the calculation of
royalties shall not become binding and conclusive (and GNE shall not be released
from liability or accountability with respect to such royalties) before three
years following the date, if any, that such dispute is finally resolved between
the parties by mutual written agreement. It is understood that nothing in the
preceding sentence shall limit or prohibit the carrying forward of an applicable
credit against royalties permitted under Sections 3.3.1(b) or 3.3.3(c).
4.2.2 ABX. ABX shall keep complete, true and accurate books of
account and records for the purpose of determining the royalty amounts payable
to ABX under Sections 3.3.3, 3.3.8, 3.6.1 or 3.6.2. Such books and records shall
be kept at the principal place of business of ABX for at least three (3) years
following the end of the calendar quarter to which they pertain. For any period
for which GNE has paid royalties under Sections 3.3.3, 3.6.1 or 3.6.2 of this
Agreement, such records will be open for inspection during such three-year
period by an independent certified public accountant representing GNE and
reasonably acceptable to ABX for the purpose of verifying the invoiced amounts
paid by GNE. All such inspections may be made no more than once each calendar
year at reasonable times mutually agreed by GNE and ABX. The representative of
GNE will be obliged to execute a reasonable confidentiality agreement prior to
commencing any such inspection. The results of any inspection hereunder shall be
provided to both parties as follows: it is understood and agreed that GNE shall
not be informed of the financial terms of any [*], and shall only be informed
whether or not the amounts invoiced by ABX and paid by GNE accurately
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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represent the amounts to be paid by [*]. ABX shall refund any
overpayment found by the accountant in such an inspection within thirty (30)
days after receiving the results, and GNE shall pay to ABX any underpayment
found by the accountant in such an inspection within thirty (30) days after
receiving notice of such underpayment. Inspections conducted for payments under
Section 3.3.3, 3.6.1, or 3.6.2 shall be at the expense of ABX; provided,
however, that if the invoices referred to in Sections 3.3.3, 3.6.1, or 3.6.2 do
specify the [*], such inspection shall be at the expense of GNE unless a
variation or error producing a decrease exceeding [*] of the amount paid by GNE
for any period (after taking into account any applicable annual reconciliation)
is established in the course of any such inspection, whereupon all costs of such
audit of such period will be paid by ABX and provided, further, that audits
under Section 3.3.8 will be at the expense of GNE. Upon the expiration of three
(3) years following the end of any calendar year, the calculation of royalties
payable with respect to such year shall be binding and conclusive, and GNE shall
be released from any liability or accountability with respect to royalties for
such year; provided, however, that if ABX has demanded payment of additional
royalties it claims have not been properly paid under this Agreement, or if
there is a dispute between the parties regarding the amount of royalties due,
prior to the expiration of the third calendar year following the calendar year
in question, then the calculation of royalties shall not become binding and
conclusive (and GNE shall not be released from liability or accountability with
respect to such royalties) before three years following the date, if any, that
such dispute is finally resolved between the parties by mutual written
agreement. It is understood that nothing in the preceding sentence shall limit
or prohibit the carrying forward of an applicable credit against royalties
permitted under Section 3.3.5.
4.3 Payment Method. All payments due hereunder shall be made in U.S.
dollars, and shall be made by bank wire transfer in immediately available funds
to an account designated by ABX in a written notice to GNE. Any payments from
ABX to GNE (if any) shall also be made in U.S. dollars, by bank wire transfer in
immediately available funds to an account designated by GNE in a written notice
to ABX.
4.4 Currency Conversion. If any currency conversion shall be required in
connection with the calculation of royalties hereunder, such conversion shall be
made using the selling exchange rate for conversion of the foreign currency into
U.S. Dollars, quoted for current transactions reported in The Wall Street
Journal for the last business day of the calendar quarter to which such payment
pertains.
4.5 Late Payments. Any payments due from GNE (or from ABX, if any) that
are not paid on the date such payments are due under this Agreement shall bear
interest at the lesser of (i) the [*], or (ii) the maximum rate permitted by
applicable law, in each case calculated on the number of days such payment is
delinquent. This Section 4.5 shall in no way limit any other remedies available
to either party.
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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4.6 Withholding Taxes. All payments required to be made pursuant to
Article 3 hereof shall be without deduction or withholding for or on account of
any taxes or similar governmental charge imposed by a jurisdiction except for
withholding taxes to the extent applicable ("Withholding Taxes"). GNE shall pay
any applicable Withholding Taxes due on behalf of ABX and shall promptly provide
ABX with written documentation of any such payment sufficient to satisfy the
requirements of the United States Internal Revenue Service related to an
application by ABX for a foreign tax credit for such payment.
4.7 Restrictions on Payment. If by law, regulation or fiscal policy of a
particular country or jurisdiction in the Territory, remittance of funds in U.S.
Dollars is restricted or forbidden such that GNE cannot expatriate funds and
that both ABX and GNE are affected, written notice thereof will promptly be
given to ABX, and payment of such funds that constitute amounts that would be
owing to ABX under this Agreement that cannot be expatriated shall be made by
the deposit thereof in local currency to the credit of ABX in a recognized
banking institution designated by ABX in writing. When in any country or
jurisdiction in the Territory the law, regulation or fiscal policy prohibit both
the transmittal and the deposit of royalties on sales of Products in such
country or jurisdiction, royalty payments shall be suspended for as long as such
prohibition is in effect, and as soon as such prohibition ceases to be in
effect, all royalties that GNE would have been under an obligation to transmit
or deposit but for such prohibition shall forthwith be deposited or transmitted.
5.0 DUE DILIGENCE.
5.1 Reasonable Commercial Efforts; IND Milestone.
5.1.1 GNE agrees to use commercially reasonable efforts
consistent with prudent business judgment to commercialize Products, by the
filing of an IND by GNE or its Sublicensee in the United States or Japan, within
such time period as may be mutually agreed upon by the parties after taking into
account factors relating to the Product Antigen and ABX's obligations under the
Product License with XT or, if no such period is agreed upon, [*] years from the
Effective Date. ABX agrees that it will, on request of GNE, use reasonable
efforts to try to establish a longer period of time for filing of an IND in the
United States or Japan under the terms of the Product License.
5.1.2 Notwithstanding the foregoing, GNE shall be required
actively and continuously to pursue the filing of an IND by GNE or its
Sublicensee, as soon as practicable after the Effective Date using reasonable
commercial efforts consistent with prudent business judgment. After filing of an
IND, GNE or its Sublicensee shall be required to have an active IND and to use
commercially reasonable efforts, consistent with prudent business judgment, to
conduct clinical trials in pursuit of regulatory approval for a Product in the
United States or Japan.
5.2 Failure to Meet Due Diligence Obligation. If the diligence
requirements set forth in Section 5.1 are not met by GNE (or its Sublicensees),
ABX shall have the right, at ABX's election (subject to the notice and cure
provisions under Section 10.2, except to the extent that the Product
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respect to the omitted portions.
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License between ABX and XT is terminated by XT because the diligence
requirements set forth in the Product License have not been met), either (a) to
convert GNE's exclusive license to a non-exclusive royalty-bearing license to
use the ABX Know-How and practice the ABX Patent Rights for the purposes set
forth in this Agreement, or (b) to terminate the license rights granted to GNE
hereunder.
5.3 GNE Reports. GNE agrees, upon request by ABX, to keep ABX informed
as to the research, development and commercialization of Products hereunder.
Without limiting the foregoing, if ABX makes a written request, then within
ninety (90) days of such written request during the term of this Agreement, GNE
shall provide to ABX a report detailing the status and potential timing of any
anticipated IND filings under Section 5.1 above, the status of clinical and
preclinical testing of any Products, and anticipated filings of any BLA and/or
Foreign Marketing Application for any Products in the Territory, provided,
however, that ABX may make only one such written request per twelve (12) month
period. All GNE reports hereunder shall be treated as "Confidential Information"
of GNE as provided in Article 7 of this Agreement.
5.4 Gene Therapy Applications. GNE's intention as of the Effective Date
is to commercialize a Product hereunder for an application other than Gene
Therapy (as defined below) before commercializing a Product hereunder for a Gene
Therapy application. It is understood, however, that GNE may or may not also
intend to develop and sell Products for use in Gene Therapy, and that such Gene
Therapy application may ultimately be commercialized before a Product is
commercialized hereunder for a non-Gene Therapy application. As used herein,
"Gene Therapy" shall mean the treatment or prevention of a disease by means of
[*].
6.0 INTELLECTUAL PROPERTY.
6.1 Ownership of Intellectual Property
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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6.1.1 Intellectual Property Concerning Antibodies, Cells, and
Genetic Material. GNE and ABX shall jointly own all right, title and interest in
patent or patent applications directed to inventions solely or jointly made,
conceived, reduced to practice, or otherwise developed by GNE and/or ABX in the
course of performing research or development work under the MTA, the GNE Option
Agreement, or this Agreement that are directed to (i) Antibodies, (ii)
hybridomas, and/or (iii) Genetic Material encoding Antibodies. This Section
6.1.1 hereby supercedes and cancels any term or provision of the MTA that are
inconsistent with this Section 6.1.1 to the extent that such term or provision
of the MTA relates to the Product Antigen. It is understood and agreed that
nothing in the Section 6.1.1 shall convey, or be construed to convey, title in
or to the biological materials themselves embodying any such jointly-owned
inventions to GNE or ABX, as the case may be.
6.1.2 Intellectual Property Concerning Other Inventions. Except
as otherwise provided in Sections 6.1.1 and 2.4.3 above, on and after the
effective date of the MTA, title to any inventions (and to any patent
applications and patents thereon) by a party or parties under the MTA, this
Agreement, or the GNE Option Agreement shall follow inventorship, which shall in
turn be determined in accordance with United States laws of inventorship and
probative evidence of the parties. Designation of inventors on any patent
application hereunder is a matter of law and shall be solely within the
discretion of qualified patent counsel of the party(ies) hereto making such
invention.
6.1.3 Joint Ownership. For purposes of clarification, to the
extent that something is jointly owned under this Agreement, and except as
otherwise provided in this Agreement (including the exclusive nature of the
licenses granted by ABX hereunder), either party shall have the right to use,
commercialize, grant and authorize sublicenses, and otherwise exploit all such
jointly-owned patents and inventions without obligation to account to, or obtain
the consent of, the other joint owner. Both parties hereto agree to promptly
disclose to the other all jointly-owned inventions under this Agreement and, on
request of the other party, will provide such information and assistance as may
be reasonably necessary to assist in the filing and prosecution of patent
applications claiming such inventions. The parties hereto agree to ensure that
each employee, agent, or independent contractor that conducts research using the
XenoMouse Animals, or materials derived in whole or part from the XenoMouse
Animals, will promptly disclose and assign to the parties hereto any and all
rights to jointly-owned inventions. The parties hereto agree to maintain records
in sufficient detail and in good scientific manner appropriate for patent
purposes and so as to properly reflect all work done and results achieved in
performing research under the MTA, the GNE Option Agreement, or this Agreement.
6.1.4 Non-Use of Materials. ABX shall not license or make any
other use of any material (including, without limitation, any Antibodies, B
cells, hybridomas or Genetic Material) owned by GNE or ABX, or owned jointly by
GNE and ABX, in each case, generated in whole or in part from GNE or ABX's
activities under this Agreement, the GNE Option Agreement or the MTA, except as
expressly provided in this Agreement, in any case without first obtaining GNE's
prior written consent.
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6.2 Patent Prosecution.
(a) Solely Owned. The party solely owning any invention under
Section 6.1 above shall have the sole right and responsibility (but not the
obligation), at its expense, to file, prosecute and maintain all patent
applications and patents thereon, and to conduct any interferences, oppositions,
or reexaminations thereon, and to request any reissues or patent term extensions
thereof.
(b) Jointly Owned. In the event of any invention jointly owned by
the parties under [*] above, ABX shall have the sole right and responsibility
(but not the obligation), at its expense, to file, prosecute and maintain all
patent applications (and to conduct any interferences, oppositions, or
reexaminations thereon, and to request any reissues or patent term extensions
thereof) claiming any XenoMouse Animals or any uses thereof, and GNE shall have
the sole right and responsibility (but not the obligation), at its expense, to
file, prosecute and maintain all patent applications and patents (and to conduct
any interferences, oppositions, or reexaminations thereon, and to request any
reissues or patent term extensions thereof) claiming the Product Antigen, any
Antibody or Product and/or its development, manufacture, use or sale. The party
having such rights and responsibilities hereunder is referred to as the
"Controlling Party". The Controlling Party shall: (i) provide the
non-Controlling Party with any patent application filed hereunder by the
Controlling Party promptly after such filing; (ii) provide the non-Controlling
Party promptly with copies of all substantive communications received from or
filed in patent office(s) with respect to such filings; (iii) notify the
non-Controlling Party of any interference, opposition, reexamination request,
nullity proceeding, appeal or other interparty action and review it with the
non-Controlling Party as reasonably requested; and (iv) provide the
non-Controlling Party, a reasonable time prior to taking or failing to take any
action that would substantially affect the scope of validity of rights under
such patent applications or patents thereon (including substantially narrowing
or canceling any claim without reserving the right to file a continuing or
divisional application, abandoning any patent or not filing or perfecting the
filing of any patent application) with notice of such proposed action so that
the non-Controlling Party has a reasonable opportunity to review and make
comments. If the Controlling Party fails to undertake the filing of a patent
application (or continuing or divisional application) within ninety (90) days
after a written request from the non-Controlling Party to do so, or if the
Controlling Party discontinues the prosecution or maintenance of a patent
application or patent, the non-Controlling Party at its expense may, in its
discretion, undertake such filing, prosecution or maintenance thereof in which
case such patent application thereon shall be solely owned by the
non-Controlling Party. The parties hereto shall assist each other to the extent
commercially reasonable in securing intellectual property rights resulting from
jointly owned inventions hereunder. The parties hereto shall assist each other
to the extent commercially reasonable in securing intellectual property rights
resulting from jointly owned inventions hereunder. As to enforcement of
jointly-owned patents, including actions against an alleged infringer, the
parties hereto shall consult with each other in good faith as to the best manner
in which to proceed. The parties agree as a basic principle that in the case of
such actions against alleged infringers, the expenses incurred and damages
awarded shall be first used to reimburse the costs and expenses (including
reasonable attorneys' fees) of the party or parties in the action, second used
to reimburse ABX for any amounts ABX is obligated to pay to third parties (if
any) in respect of such amount
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respect to the omitted portions.
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pursuant to applicable ABX In-Licenses, with the remainder for
the account of the party or parties that undertake such actions to the extent of
their financial participation therein. To the extent that damages are awarded
for lost sales or lost profits from the sale of Products, such damages shall be
allocated among the parties taking into account royalties that would have been
payable to ABX on the sale of such Products. Either party may withdraw from or
abandon any jointly-owned patent application or patent hereunder, on reasonable
prior written notice to the other party providing a free-of-charge option to
assume the prosecution and/or maintenance thereof.
6.3 Grant Back. It is the intent of the parties that this Agreement
shall not restrict ABX's freedom to operate regarding the practice and
commercialization of the Licensed Technology (including without limitation
XenoMouse Animals and cells, genetic material, and antibodies generated or
derived from XenoMouse Animals), except in relation to Products. Accordingly, in
the event that any patent owned or controlled by GNE that directly arises from
use of the XenoMouse Animals that has application other than for the
manufacture, use, sale, offer for sale or import of Products, GNE agrees to
grant, and hereby grants, to ABX a [*] license in the Territory, with the right
to grant and authorize sublicenses, under all patents claiming such inventions,
for all fields of use other than the manufacture, use, sale, offer for sale or
import of Products, in each case on terms and condition [*]. In the event that
any patent owned or controlled by GNE claims use of the XenoMouse Animals that
has application other than for the manufacture, use, sale, offer for sale or
import of Products, GNE agrees upon written notice from ABX to grant to ABX a
[*] license in the Territory, with the right to grant and authorize sublicenses,
under all patents claiming such inventions, for all fields of use other than the
manufacture, use, sale, offer for sale or import of Products, [*].
6.4 Enforcement of ABX Patent Rights.
(a) If either party learns that a third party is infringing or
allegedly infringing any ABX Patent Rights, it shall promptly notify the other
party thereof, including available evidence of infringement. As between GNE, its
Sublicensees and ABX, ABX shall have the exclusive right at its expense, and in
its discretion, to bring an enforcement proceeding, or defend any declaratory
judgment action, involving any ABX Patent Rights. ABX shall keep GNE reasonably
informed of the progress of such claim, suit or proceeding involving enforcement
or defense of any ABX Patent Rights. To the extent such action involves claims
directly concerning any Antibody or Product, GNE shall have the right to join
such proceeding at any time at its own expense, but GNE shall not admit the
invalidity or unenforceability of any ABX Patent Rights without ABX's prior
written consent.
(b) Notwithstanding the foregoing, if ABX notifies GNE that it
does not desire to pursue an enforcement action or defend a declaratory judgment
action hereunder with respect to any infringement of any patent rights described
in Section 6.1.1 or other patent rights [*] by
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with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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the parties as set forth in Section 6.1.2, then to the extent
such action involves or affects any Antibody or Product, GNE may at its expense
bring or defend such action with respect to such patent rights (and no other
patent rights in the ABX Patent Rights) in consultation with ABX, and in such
event ABX agrees to join as party plaintiff at GNE's expense if necessary to
prosecute the action and agrees to give GNE reasonable assistance and authority
to file and prosecute the suit (but neither party shall be required to transfer
title to any property to confer standing on a party hereunder). In connection
with any such action by GNE hereunder. GNE shall not admit the invalidity or
unenforceability of any ABX Patent Rights without ABX's prior written consent.
(c) Any recovery as a result of any such claim, suit or
proceeding hereunder shall be first used to reimburse the costs and expenses
(including reasonable attorneys' fees) of the party or parties in the action,
second used to reimburse ABX for any amounts ABX is obligated to pay to third
parties in respect of such amount pursuant to applicable ABX In-Licenses and
GNE's and its Sublicensees' lost sales of Products within the Field because of
the infringement, with the remainder for the account of the party or parties
that undertake such actions to the extent of their financial participation
therein. To the extent that damages are awarded for lost sales or lost profits
from the sale of Products, such damages shall be allocated among the parties
taking into account royalties that would have been payable to ABX on the sale of
such Products.
6.5 Infringement Claims Against GNE. If the production, sale or use of
Product pursuant to this Agreement results in any claim, suit or proceeding
alleging patent infringement against GNE (or its Affiliates or Sublicensees),
GNE shall promptly notify ABX thereof in writing setting forth the facts of such
claim in reasonable detail. GNE agrees to keep ABX reasonably informed of all
material developments in connection with any such claim, suit or proceeding as
it relates to the Licensed Technology. Notwithstanding the above, GNE shall not
admit the invalidity of any patent within the Licensed Technology without
written consent from ABX.
6.6 Limitation. Notwithstanding any other provision in this Article 6,
the parties acknowledge and understand that (i) ABX shall not be obligated to
prepare, file, prosecute, and maintain patents and patent applications, or to
bring or pursue enforcement proceedings or defend declaratory judgement actions
regarding the Licensed Technology if, and to the extent that, ABX is not
entitled to do so under one or more ABX In-Licenses, and (ii) any rights
conveyed under this Article 6 permitting GNE to prepare, file, prosecute and
maintain certain patents and patent applications, or to bring and pursue
enforcement proceedings, or defend declaratory judgment actions, regarding the
Licensed Technology, shall be subject to all applicable ABX In-Licenses, and are
conveyed only to the extent permitted under such agreements.
6.7 Patent Marking. GNE agrees to mark and have its Sublicensees mark
all Products sold pursuant to this Agreement in accordance with the applicable
statutes or regulations in the country or countries of manufacture and sale
thereof.
7.0 CONFIDENTIALITY.
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7.1 Confidentiality. Except as expressly provided herein, the parties
agree that during the term of this Agreement 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 other than performance of
this Agreement any information furnished to it by the other party hereto
pursuant to this Agreement ("Confidential Information"), except to the extent
that it can be established by the receiving party by competent proof that such
information:
(a) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the receiving party;
(c) 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; or
(d) was subsequently lawfully disclosed to the receiving party by
a person other than a party or developed by the receiving party without
reference to any information or materials disclosed by the disclosing party.
7.2 Permitted Disclosures. Notwithstanding Section 7.1 above and Section
7.4 below, each party hereto may nevertheless disclose the other party's
Confidential Information and the terms of this Agreement to the extent such
disclosure is reasonably necessary in filing or prosecuting patent applications,
prosecuting or defending litigation, complying with applicable laws or
regulations or otherwise submitting information to tax or other governmental
authorities, making a permitted Sublicense or publication or other exercise of
its rights hereunder or conducting clinical trials, provided that if a party is
required by law to make any such disclosure of the other party's Confidential
Information, other than pursuant to a confidentiality agreement, it will give
reasonable advance notice to the other party of such disclosure requirement and,
save to the extent inappropriate in the case of patent applications, will use
efforts consistent with prudent business judgment to secure confidential
treatment of such information prior to its disclosure (whether through
protective orders or confidentiality agreements or otherwise). It is understood
that the obligations set forth in this Article 7 are separate from GNE's
obligations under Section 2.2 of the GNE Option Agreement, and the expiration or
nonapplicability of GNE's obligations under Section 7.1 above shall not be
deemed to limit GNE's obligations under Section 2.2 of the GNE Option Agreement.
7.3 Scientific Publications. The parties agree, as a general principle,
that it is desirable to publish the results of the research conducted by the
parties hereto under this Agreement and agree that both parties will have the
right to publish such results. The following restrictions shall apply with
respect to the disclosure in scientific journals or publications by the parties
hereto regarding any scientific work under this Agreement (but not any
Independent Discovery or other research performed by the parties): (a) the party
publishing, or proposing to publish, such results (the
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"Publishing Party") shall provide the other party (the "Non-Publishing
Party") with an advance copy of any proposed submission of a publication arising
from such scientific work, not less than thirty (30) days prior to submission or
disclosure of such publication, and the Non-Publishing Party shall have a
reasonable opportunity to recommend any changes it reasonably believes are
necessary to preserve its Patent Rights or Know-How or to protect its
Confidential Information, and the incorporation of such recommended changes
shall not be unreasonably refused; and (b) if the Non-Publishing Party informs
the Publishing Party, within thirty (30) days of receipt of an advance copy of a
proposed publication hereunder, that such publication includes Confidential
Information of the Non-Publishing Party the publication of which, in the
Non-Publishing Party's sole judgment, could be expected to have a material
adverse effect on any of its Patent Rights or reasonable Know-How, or on the
Non-Publishing Party's business affairs, the Publishing Party shall delete such
Confidential Information of the Non-Publishing Party from such publication and,
in the case of inventions made solely by the Publishing Party or jointly by the
Publishing Party and the Non-Publishing Party, delay publication thereof for an
a time period (not to exceed ninety (90) days) sufficient for the preparation
and filing of a patent application or application for a certificate of invention
thereon, in accordance with Article 6 of this Agreement. The parties agree to
confer regarding authorship of such publications, which shall be determined in
accordance with the standards for authorship customary for peer-reviewed
journals. For purposes of this Section, the Parties agree that publication of
Confidential Information covered by a filed patent application shall not be
required to be deleted solely due to a patent application not having reached its
18 month publication date.
7.4 Terms of Agreement. Except as expressly provided in this Article 7,
each party hereto agrees not to make any public disclosure of the terms of this
Agreement or the identity of the Product Antigen (including, without limitation,
any press release and/or Q&A to be issued on the Option Effective Date), without
first obtaining the written approval of the other party and agreement upon the
nature and text of such public announcement or disclosure. The party desiring to
make any such public announcement shall provide the other party with a copy of
the proposed announcement for review and comment in reasonably sufficient time
prior to public release. Each party agrees that it shall cooperate fully with
the other with respect to all disclosures regarding this Agreement required
under applicable laws and regulations to the United States Securities Exchange
Commission and any other governmental or regulatory agencies, including requests
for confidential treatment of proprietary information of either party included
in any such governmental disclosure. The parties may publicly disclose
information contained in any prior public disclosure that was in compliance with
this Section without further approvals hereunder. In addition, each party agrees
not to disclose the identity of the Product Antigen to any third party under any
circumstances except if required by law, [nor the terms of this Agreement or the
GNE Option Agreement to any third party, other than professional advisors and
financing sources, and in that case, only under confidentiality terms that are
at least as stringent in material respects as those in this Article. The parties
acknowledge that, in the event of an initial public offering by ABX, ABX may be
required to file this Agreement or information related thereto with the
Securities and Exchange Commission (the "SEC"). In that event, and thereafter,
ABX shall be entitled to comply with the disclosure requirements of the SEC,
provided, however, that in connection with any required SEC filing of this
Agreement by ABX, ABX shall use its reasonable efforts to obtain confidential
treatment of portions of the Agreement
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from the SEC (including, without limitation, financial terms and the
identity of the Product Antigen). GNE shall have the right to review and comment
on such an application for confidential treatment insofar as it pertains to this
Agreement prior to its being filed with the SEC and ABX shall not unreasonably
refuse such comments. GNE shall provide its comments, if any, on such
application as soon as practicable, and in no event later than four (4) days
after such application is provided to GNE.
8.0 INDEMNIFICATION
8.1 GNE. GNE agrees to save, defend and hold ABX and its directors,
officers, employees, agents and Affiliates harmless from and against any suits,
claims, actions, demands, damages, liabilities, expenses or losses (including
court costs and reasonable attorneys' and experts' fees) (collectively, the
"Liabilities") resulting directly from (a) third party claims arising from any
negligence or willful misconduct of GNE (or its directors, officers, employees,
agents or Sublicensees) or the breach of any representations or warranties of
GNE under this Agreement, or (b) any third party claims arising from GNE's or
its Sublicensee's development, making, having made, use, offer for sale, or sale
of any Product developed, manufactured, used, sold or otherwise distributed by
GNE and its Sublicensees under this Agreement; provided, however, that nothing
in this Section 8.1 shall obligate GNE to save, defend or hold harmless ABX for
any Liabilities to the extent arising from the negligence or willful misconduct
of ABX or its directors, officers, employees, or agents.
8.2 ABX. ABX agrees to save, defend and hold GNE and its directors,
officers, employees, agents and Affiliates harmless from and against any
Liabilities resulting directly from (a) third party claims arising from any
negligence or willful misconduct of ABX (or its directors, officers, employees,
or agents) or the breach of any representations or warranties of ABX under this
Agreement, (b) any third party claims arising from any negligence or willful
misconduct of ABX or its directors, officers, employees, agents in the course of
conducting ABX work under the Research Plan or (c) any third party claims
arising from infringement of a Core Third Party Patent in the course of using
the Licensed Technology in accordance with this Agreement, the GNE Option
Agreement, or the MTA, (including, without limitation, the production of
Antibodies to the Product Antigen); provided, however, that indemnification
under Section 8.2(c) shall only be required by ABX in the event that neither ABX
nor GNE enters into a license with the party claiming infringement, under
Section 3.6 of this Agreement; provided, further, that indemnification under
Section 8.2(c) shall be limited to amounts paid by GNE to ABX under this
Agreement; and provided, further, that nothing in this Section 8.2 shall
obligate ABX to save, defend or hold harmless GNE for any such Liabilities to
the extent arising from the negligence or willful misconduct of GNE or its
directors, officers, employees, agents or Sublicensees.
8.3 Indemnification Procedures. If any person or party entitled to
indemnification under this Article 8 (an "Indemnitee") intends to claim
indemnification under this Article 8, it shall promptly notify the indemnifying
party hereunder (the "Indemnitor") in writing of any Liability in respect of
which the Indemnitee intends to claim such indemnification, as soon as
reasonably
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practicable after the Indemnitee receives notice of such Liability.
Indemnitor's obligations under this Article 8 are conditioned upon the
Indemnitee permitting the Indemnitor to assume direction and control of the
defense of the Liability (including the right to settle it); provided, however,
that an Indemnitee shall have the right to retain its own legal counsel, with
the reasonable fees and expenses thereof to be paid by the Indemnitor, if
representation of such Indemnitee by the legal counsel retained by the
Indemnitor would be inappropriate due to actual or potential conflicts of
interest between such Indemnitee and such Indemnitor. Indemnitor's obligations
under this Article 8 shall not apply to amounts paid in settlement of any loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Indemnitor, which consent shall not be withheld or delayed
unreasonably. The failure to deliver written notice to the Indemnitor within a
reasonable time after the commencement of any third party suit, claim, action or
demand, if prejudicial to Indemnitor's ability to defend such suit, claim,
action or demand, shall relieve the Indemnitor of its obligations under this
Section 8 with respect to Liabilities that could have been defended in such
action. The Indemnitee (and its directors, officers, employees and agents) shall
cooperate fully with the Indemnitor and its legal counsel in the investigation
of any such Liability for which indemnification is sought by such Indemnitee
hereunder.
9.0 REPRESENTATIONS, WARRANTIES AND COVENANTS.
9.1 ABX. ABX represents, warrants and covenants to GNE that:
(a) it has the full right and authority to enter into this
Agreement and grant the rights and licenses granted herein;
(b) it has not previously granted, and during the term of this
Agreement will not grant, any rights inconsistent or in conflict with the rights
and licenses granted to GNE herein, including without limitation, any right,
license in and to the Licensed Technology granted under this Agreement, or any
portion thereof, with respect to the Products or their development, manufacture,
use or sale;
(c) to its knowledge as of the Effective Date and except as set
forth on Schedule A hereto, there were no existing or threatened actions, suits
or claims pending against ABX with respect to the Licensed Technology or the
right of ABX to enter into and perform its obligations under this Agreement or
the Product Agreement with XT, and ABX has informed GNE of all such existing or
threatened actions, suits or claims of which ABX is aware as of the Effective
Date;
(d) it will not take any action or fail to take any action under
this Agreement that will cause a breach of the GenPharm Cross-License, the
Xenotech Agreement, the Product License, or any ABX In-License; provided,
however, that it shall not be a breach of this covenant if ABX cures any breach
of such third party agreement pursuant to the cure provisions contained therein;
(e) As of the Effective Date and except as set forth on Schedule
A hereto ABX (a) had no knowledge (without the obligation to perform due
diligence) of any rights of third parties that
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would interfere with the use of the ABX Know-How or practice of
the ABX Patent Rights as contemplated under this Agreement (including, without
limitation, work under the Research Plan or otherwise in the Research Field
pursuant to the GNE Option Agreement or this Agreement), and (b) had no
knowledge (without the obligation to perform due diligence) that any patents or
patent applications within the ABX Patent Rights are invalid or unenforceable or
that their practice would infringe patent rights of third parties, provided,
however, that this representation does not apply to possible infringements
relating to the Product Antigen;
(f) as of the Effective Date, Cell Genesys, Inc. ("CGI") had
assigned to ABX all of CGI's rights and obligations under the Xenotech
Agreement, and ABX is now a party to the Xenotech Agreement in lieu of CGI;
(g) it has provided to GNE, on or before the Effective Date,
complete copies of all applicable ABX In-Licenses setting forth all applicable
limitations or restrictions described in Section 2.3 (it being understood that
the financial terms have been redacted from some or all such copies) and shall,
at GNE's request, discuss with GNE ABX's interpretation of material terms
(excepting only financial terms) and conditions of such ABX In-License,
including, without limitation, any limitations on ABX's right to further
transfer or grant licenses or sublicenses to GNE to any and all rights to
technology within the scope of the ABX Patent Rights and/or ABX Know-How under
any ABX In-License;
(h) on or before the Effective Date, ABX entered into a Product
License for the Product Antigen with XT under the Xenotech Agreement and that
Product License is an [Exclusive Worldwide Product License] [Exclusive Qualified
Worldwide Product License] (as such term is defined in the Xenotech Agreement),
and GNE is ABX's exclusive sublicensee of ABX for all uses of the Licensed
Technology under the Produce License relating to Products in the Field
throughout the Territory, as provided in this Agreement;
(i) ABX has provided GNE with a complete copy (excepting only
financial terms) of such Product License as signed by all parties thereto.
During the term of this Agreement: (i) ABX will not agree to any modifications
or amendments to such Product License that restrict or limit or otherwise
negatively affect the rights and licenses granted to GNE hereunder, and shall
not terminate any licenses therein, in any case without GNE's prior written
consent in its sole discretion; and (ii) ABX shall provide GNE promptly with a
copy of any notice of default by ABX and/or its Sublicensee under such Product
License, and of any notice of termination by any other party thereto;
(j) If the Product License is an Exclusive Worldwide Product
License, JTI does not have the right under the Xenotech Agreement to obtain an
"Exclusive Home Territory Product License" or a "Co-Exclusive Worldwide Product
License" (as these are defined in the Xenotech Agreement and attached thereto as
exhibits) for the Product Antigen, or any other right or license under the
Licensed Technology to develop, make or have made, use, sell, lease, or offer to
sell or lease, import, export, otherwise transfer physical possession of or
otherwise transfer title to Products
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in the Field in the Territory. ABX shall notify GNE promptly in
writing of assertion by JTI (if any) that it may have any such rights anywhere
in the Territory;
(k) ABX shall not agree to any termination, modifications or
amendments to any ABX In-Licenses that would negatively affect GNE's rights or
obligations under this Agreement without first obtaining Genentech's prior
written consent, and ABX shall notify GNE as soon as practicable of any material
modification or amendment of any ABX In-License that affects (positively or
negatively) GNE's rights or obligations under the Agreement;
(l) ABX shall provide GNE promptly with a copy of any notice of
default by ABX and/or its Sublicensee under any ABX In-License, and of any
notice of termination by any other party to any ABX In-License; and
(m) ABX shall not use or permit others to use cells created by
GNE or ABX from immunization of XenoMouse Animals with the Product Antigen under
this Agreement, the [*] Product License, or the MTA in any way without GNE's
prior written consent nor shall ABX directly or indirectly create, incur, assume
or suffer to exist, any lien, security interest or other similar encumbrance
upon or with respect to such cells.
9.2 GNE. GNE represents, warrants and covenants to ABX that:
(a) it has the full right and authority to enter into this
Agreement and grant the rights and licenses granted herein;
(b) to its knowledge as of the Option Effective Date, there were
no existing or threatened actions, suits or claims pending against GNE or its
Affiliates with respect to the subject matter hereof (including, without
limitation, rights in and to the Product Antigen and/or antibodies to the
Product Antigen) or the right of GNE to enter into and perform its obligations
under this Agreement, and GNE has informed ABX of all such existing or
threatened actions, suits or claims of which GNE is aware as of the Effective
Date;
(c) it has not previously granted, and during the term of this
Agreement will not grant, any rights inconsistent or in conflict with the rights
and licenses granted under this Agreement; and
(d) it will not, to its knowledge, take any action or fail to
take any action that will cause a breach of the GenPharm Cross License, the
Xenotech Agreement, the Product License, or any ABX In-License.
(e) as of the Effective Date and except as set forth on Schedule
B hereto, GNE has no knowledge (without the obligation to perform due diligence)
of any rights of third parties that would interfere with the use of the ABX
Know-How or practice of the ABX Patent Rights as contemplated
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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under this Agreement (including, without limitation, work under
the Research Plan or otherwise in the Research Field pursuant to this Agreement
or the [*] Product License).
9.3 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES TO
THE OTHER PARTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING PRODUCTS OR
THE LICENSED TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND VALIDITY
OF LICENSED TECHNOLOGY CLAIMS, ISSUED OR PENDING. ALL XENOMOUSE ANIMALS AND
MATERIALS DERIVED IN WHOLE OR PART FROM THE XENOMOUSE ANIMALS PROVIDED TO GNE BY
ABX ARE PROVIDED "AS IS," AND ABX SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO XENOMOUSE
ANIMALS AND MATERIALS DERIVED IN WHOLE OR PART FROM XENOMOUSE ANIMALS.
9.4 Effect of Representations and Warranties. It is understood that if
the representations and warranties of a party under this Article 9 are not true
and accurate and the other party incurs any damages, liabilities, expenses or
losses (including court costs and reasonable attorneys' and experts' fees, but
excluding costs and fees incurred in asserting a claim or bringing a lawsuit
between the parties hereto) as a direct result of such falsity or inaccuracy,
the party at fault shall save, defend and hold the other party harmless from and
against any such suits, claims, actions, demands, damages, liabilities, expenses
or losses.
10.0 TERM AND TERMINATION.
10.1 Term. The term of this Agreement shall commence on the Effective
Date and, unless earlier terminated as provided in this Article 10, shall
continue in full force and effect on a country-by-country basis until the
expiration of all royalty obligations pursuant to this Agreement for such
country, as provided in Section 3.3.6 above. Following the expiration, but not
earlier termination, of this Agreement on a country-by-country basis, GNE shall
have a fully-paid up, royalty-free, perpetual, sublicensable license as granted
in Article 2 which shall be an exclusive (as to ABX) license under the ABX
Know-How solely to commercialize Products in such country.
10.2 Termination for Breach. Either party to this Agreement may
terminate this Agreement in the event that the other party shall have materially
breached or defaulted in the performance of any of its material obligations
hereunder, and such breach or default shall have continued for sixty (60) days
after written notice of such breach and intent to terminate this Agreement
therefor was provided to the breaching party by the nonbreaching party. Any such
termination shall become effective at the end of such sixty (60) day period
unless the breaching party has cured any such breach or default prior to the
expiration of the sixty (60) day period. Any such termination shall be without
prejudice to any other rights, conferred, or remedies available to, the
nonbreaching party by law or at equity, including, without limitation, under
Section 8.3 above. The
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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right of a nonbreaching party to terminate this Agreement pursuant to
this Section 10.2 shall not be affected in any way by its waiver or failure to
take action with respect to any previous default.
10.3 Termination for Insolvency or Bankruptcy. Either party may, in
addition to any other remedies available to it by law or in equity, terminate
this Agreement effective on written notice to the other party in the event the
other party shall have become insolvent or bankrupt, or shall have made an
assignment for the benefit of its creditors, or there shall have been appointed
a trustee or receiver of the other party or for all or a substantial part of its
property, or any case or proceeding shall have been commenced or other action
taken by or against the other party in bankruptcy or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or readjustment
of its debts or any other relief under any bankruptcy, insolvency,
reorganization or other similar act or law of any jurisdiction now or hereafter
in effect, or there shall have been issued a warrant of attachment, execution,
distraint or similar process against any substantial part of the property of the
other party, and any such event shall have continued for ninety (90) days
undismissed, unbonded and undischarged. Furthermore, all rights and licenses
granted under this Agreement are, and shall be deemed to be, for purposes of
Section 365(n) of the Bankruptcy Code, licenses of rights to "intellectual
property" as defined under Section 101(56) of the United States Bankruptcy Code.
The parties agree that in the event of the commencement of a bankruptcy
proceeding by or against of party hereunder under the United States Bankruptcy
Code, the other party shall be entitled to complete access, in accordance with
this Agreement, to any such intellectual property, and all embodiments of such
intellectual property, pertaining to the rights licensed to it hereunder of the
party by or against whom a bankruptcy proceeding has been commenced.
10.4 Termination by GNE. GNE may terminate this Agreement and the
license granted herein at any time, by providing ABX ninety (90) days prior
written notice.
10.5 Effect of Termination.
10.5.1 Accrued Obligations. Expiration or any termination of this
Agreement shall not release either party hereto from any liability which at the
time of such expiration or termination has already accrued to such party or
which is attributable to a period prior to such expiration or termination,
subject to the terms of this Agreement, nor preclude either party from pursuing
any rights and remedies it may have hereunder or at law or in equity which
accrued to it prior to such expiration or termination, subject to the terms of
this Agreement.
10.5.2 Stock in Hand; Sublicenses. In the event this Agreement is
terminated for any reason, GNE and its Sublicensees shall have the right to sell
or otherwise dispose (consistent with all applicable regulations and law and
subject to Articles 3 and 4 of this Agreement) of the stock of any Product
subject to this Agreement then on hand. No termination of this Agreement (except
by ABX under Section 10.2 above) shall be construed as a termination of any
Sublicenses hereunder, and any Sublicense granted by GNE hereunder shall
survive, provided that upon request by ABX, such Sublicensee promptly agrees in
writing to be bound by the applicable terms of this Agreement.
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10.5.3 Return of Know-How; Termination of Licenses (a) In the
event that ABX terminates this Agreement under Section 10.2 above, GNE shall
promptly transfer to ABX, at GNE's expense, all ABX Know-How (including without
limitation any XenoMouse Animals) then in GNE's or any of its Sublicensee's
possession or control. After the effective date of such termination, GNE shall
have no further obligations to ABX with respect to the development and
commercialization of Products in the Field in the Territory, all underlying
rights to the ABX Patent Rights and ABX Know-How (including without limitation
as such rights pertain to the Products in the Field in the Territory) shall be
the sole property of ABX, and all of GNE's license rights to the ABX Patent
Rights and the ABX Know-How shall terminate. GNE, at GNE's expense, shall
execute all documents and make any filings necessary to perfect such license
rights in ABX. In the event that GNE terminates this Agreement under
Section10.2, above, after the effective date of such termination, GNE shall have
no further obligations to ABX with respect to the development and
commercialization of Products in the Field in the Territory except as set forth
herein, including Section 10.5.7. Such termination shall not terminate any
rights of GNE under this Agreement, and GNE shall have an exclusive license
under the ABX Patent Rights and to use the ABX Know-How to research, develop,
make, have made Products in the Field in the Territory and to use, sell, lease,
offer to sell or lease, import, export, otherwise transfer physical possession
of or otherwise transfer title to Products in the Field in the Territory. Such
license shall be subject to the same royalty obligations as set forth under
Article 3 above. ABX, at ABX's expense, shall execute all documents and make any
filings necessary to perfect such license rights to GNE.
10.5.4 GNE Option Agreement. This Agreement is independent of,
and shall not be affected by, the expiration or termination of the GNE Option
Agreement; provided that notwithstanding the foregoing, any breach by GNE of the
GNE Option Agreement shall be deemed a breach of this Agreement.
10.5.5 XT. GNE and ABX agree that this Agreement, including,
without limitation, any licenses and sublicenses granted to GNE pursuant to this
Agreement, and the [*] Product License (including any licenses and sublicenses
to be granted to GNE therein) shall survive any dissolution, liquidation or
acquisition of XT, and that such licenses shall remain in full force and effect
even after any distribution, following dissolution, of the intellectual property
owned or licensed to XT, to any entity. GNE and ABX agree that any transfer of
such intellectual property to or following such dissolution shall be subject to
the licenses and sublicenses granted herein (and to be granted pursuant to the
[*] Product License, if entered into at all by the parties).
10.5.6 ABX In-Licenses. In the event that any ABX In-License is
terminated due to breach by ABX and, as a result of such termination, ABX is
unable to convey to GNE the rights necessary to manufacture, use or sell
Products, ABX agrees that GNE's licenses hereunder shall survive and GNE shall
step into the shoes of ABX with regard to such ABX In-License as set forth in,
and on the terms and conditions provided in, such ABX In-License. ABX agrees to
use reasonable efforts and to take such actions as are reasonably necessary to
effectuate the foregoing.
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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10.5.7 Survival. Section 2.6, 5.3, 9.3 and 10.5 and Articles 3,
4, 6, 7, 8 and 11 shall survive the expiration and any termination of this
Agreement for any reason.
11.0 MISCELLANEOUS.
11.1 Governing Laws. This Agreement shall be interpreted and construed
in accordance with the laws of the State of California, without regard to
conflicts of law principles.
11.2 Waiver. It is agreed that no waiver by any party hereto of any
breach or default of any of the covenants or agreements herein set forth shall
be deemed a waiver as to any subsequent and/or similar breach or default.
11.3 Assignment. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated, in whole or part, by either party
without the prior written consent of the other; provided, however, that either
party may, without the written consent of the other, assign this Agreement to
(a) any entity to which it has acquired all or substantially all of the business
or assets of the assigning party, or (b) any successor corporation resulting
from any merger or consolidation with another corporation (including, in the
case of GNE, F. Hoffmann-La Roche Ltd or any Affiliate thereof). Notwithstanding
the foregoing, ABX shall not be obligated without its written consent to send
XenoMouse Animals to any party other than GNE. The terms and conditions of this
Agreement shall be binding on and inure to the benefit of the permitted
successors and assigns of each party hereto.
11.4 Independent Contractors. The relationship of the parties hereto is
that of independent contractors. The parties hereto are not deemed to be agents,
partners or joint venturers of the others for any purpose as a result of this
Agreement or the transactions contemplated thereby.
11.5 Compliance with Laws. In exercising their rights under this
license, the parties shall fully comply with the requirements of any and all
applicable laws, regulations, rules and orders of any governmental body having
jurisdiction over the exercise of rights under this license.
11.6 No Implied Obligations. Except as expressly provided in Article 5
above, noting in this Agreement shall be deemed to require GNE to exploit the
Licensed Technology nor to prevent GNE from commercializing products similar to
or competitive with any Product, in addition to or in lieu of such Products.
11.7 Notices. Any notice, request, approval or consent required or
permitted to be given between the parties hereto shall be given in writing, and
shall be deemed to have been properly given if delivered in person, transmitted
by telecopy with machine confirmation of transmission, or mailed by first class
certified mail to the other party at the appropriate address set forth below, or
to such other address as may be designated in writing by a party from time to
time in accordance with this Agreement. Such notice, request, approval or
consent shall be deemed given (i) on the date delivered or transmitted if
delivered in person or transmitted by telecopy prior to 5 p.m. on any
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business day, (ii) on the next business day following delivery or
transmission if delivered in person or transmitted by telecopy after 5 p.m. on
any business day or on any non-business day, or (iii) on the fourth business day
following the date deposited in the United States mail if sent mailed by first
class certified mail.
Genentech, Inc.: Genentech, Inc.
One DNA Way
South San Francisco, CA 94080
Attn: Corporate Secretary
Telecopy: (650) 952-9881
Abgenix, Inc.: Abgenix, Inc.
7601 Dumbarton Circle
Fremont, California 94555
Attn: President
Telecopy:
with a copy to: Kenneth A. Clark, Esq.
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
Telecopy: (650) 493-8311
11.8 Export Laws. Notwithstanding anything to the contrary contained
herein, all obligations of ABX and GNE are subject to prior compliance with
United States export regulations and such other United States laws and
regulations as may be applicable, and to obtaining all necessary approvals
required by the applicable agencies of the government of the United States. GNE
shall be responsible for obtaining such approvals, and shall use efforts
consistent with prudent business judgment to obtain such approvals. ABX agrees
to cooperate reasonably with GNE and provide reasonable assistance to GNE as may
be reasonably necessary to obtain any required approvals.
11.9 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision and the parties shall discuss in good faith appropriate
revised arrangements.
11.10 Force Majeure. Nonperformance of any party (except for payment
obligations) shall be excused to the extent that performance is rendered
impossible by strike, fire, earthquake, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure to
perform, is beyond the reasonable control and not caused by the negligence,
intentional conduct or misconduct of the nonperforming party.
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11.11 No Consequential Damages. IN NO EVENT SHALL ANY PARTY HERETO BE
LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS
AGREEMENT OR THE EXERCISE OF RIGHTS HEREUNDER.
11.12 Disputes. The parties recognize that disputes as to certain
matters may from time to time arise during the term of this Agreement which
relate to either party's rights and/or obligations hereunder. It is the
objective of the parties to establish procedures to facilitate the resolution of
disputes arising under this Agreement in an expedient manner by mutual
cooperation and without resort to litigation. To accomplish this objective, it
is agreed that each party will inform the other as soon as possible when it
becomes aware of an area or issue of dispute. Prior to filing or initiating any
legal proceeding, the parties agree to discuss the dispute at the organizational
level at which such dispute arises. If either party believes there has been
sufficient discussion of the matter at such level, then such party, by written
notice to the other party, may have such dispute referred to their respective
chief executive officers (or, if unavailable, a designee who is an officer of
the party empowered to resolve such disputes) for attempted resolution by good
faith negotiations between such chief executive officers within fourteen (14)
days of such referral. In the event that the chief executive officers are not
able to resolve such dispute within such fourteen (14) day period, either party
may pursue whatever remedies are available to them under this Agreement or by
law.
11.13 Complete Agreement; Amendment. It is understood and agreed between
ABX and GNE that this Agreement and the GNE Option Agreement constitute the
entire agreement, both written and oral, between the parties with respect to the
subject matter hereof, and supersede and cancel all prior agreements respecting
the subject matter hereof, either written or oral, expressed or implied,
including, without limitation, that certain Non-Disclosure Agreement between ABX
and GNE dated as of April 25, 1997, and the MTA (to the extent provided in
Section 2.1.5, 3.2.4 and 4.1 of the GNE Option Agreement and Sections 2.5(d) and
6.1 of this Agreement). No amendment or change hereof or addition hereto shall
be effective or binding on either of the parties hereto unless reduced to
writing and executed by the respective duly authorized representatives of ABX
and GNE.
11.14 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original and both together shall be deemed to
be one and the same agreement.
11.15 Headings. The captions to the several Articles and Sections hereof
are not a part of this Agreement, but are included merely for convenience of
reference only and shall not affect its meaning or interpretation.
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IN WITNESS WHEREOF, the parties have executed this Agreement, through
their respective officers hereunto duly authorized, as of the day and year first
above written.
ABGENIX, INC. GENENTECH, INC.
By:______________________________ By:________________________________
Name:____________________________ Name:______________________________
Title:___________________________ Title:_____________________________
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ATTACHMENT A
[*]
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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ATTACHMENT A
[*]
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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ATTACHMENT A
[*]
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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ATTACHMENT B
ABX MATERIALS
[*]
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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ATTACHMENT C
IN-LICENSES
[*]
[*] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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SCHEDULE A
[TO BE COMPLETED BY ABX PRIOR
TO EXECUTION OF THIS AGREEMENT]
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SCHEDULE B
[TO BE COMPLETED BY GNE PRIOR
TO EXECUTION OF THIS AGREEMENT]
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<PAGE> 1
EXHIBIT 10.33A
CONFIDENTIAL TREATMENT REQUESTED BY ABGENIX, INC.
Execution Copy
AMENDMENT NO.1
TO RESEARCH LICENSE AND OPTION AGREEMENT
This Amendment No.1 (this "Amendment"), effective as of June 18, 1998
(the "Effective Date"), to that certain Research License and Option Agreement
dated as of April 6, 1998 (the "Agreement"), is made by and between Abgenix,
Inc., a Delaware corporation ("ABX") and Genentech, Inc., a Delaware corporation
("GNE"). Capitalized terms used herein not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
RECITALS
WHEREAS, the Parties entered into the Agreement giving GNE (i) a
research license to use the XenoMouse Animals for immunization with the Product
Antigen and to perform other research related thereto, and (ii) an Option to
enter into the [***] Product License to develop and commercialize Products
resulting from research related to the Product Antigen;
WHEREAS, the Parties wish to amend the Agreement to expand the research
license and Option to include a second antigen with which GNE may immunize the
XenoMouse Animals and obtain an option to commercialize products resulting from
the research performed relating to such second antigen.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, it is agreed by and between the parties as follows:
SECTION 1. Amendments to the Agreement.
(a) The definition of "Product Antigen" in Section 1.1 of the Agreement
is hereby deleted in its entirety and replaced with the following:
""Product Antigen" shall, for purposes of the GNE Option
Agreement, mean [***] and/or [***]; however, the parties
agree that (i) for purposes of the [***] Product License,
"Product Antigen" shall mean [***] and (ii) for purposes of
the [***] Product License, "Product Antigen" shall mean
[***]".
(b) The definition of "Product License" in Section 1.1 of the Agreement
is hereby deleted in its entirety and replaced with the following:
""Product License" shall mean (i) an "Exclusive Worldwide
Product License" as defined in the Xenotech Agreement (and
in the form attached thereto as an exhibit) granted from XT
to ABX pursuant to the terms of
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 2
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the Xenotech Agreement (and permitting ABX, among other
things, to commercialize Products throughout the world for
all human medical uses) when used in connection with [***]
in the Agreement or when used in the [***] Product License
and (ii) either an "Exclusive Worldwide Product License",
or a "Qualified Exclusive Worldwide Product License", or a
"Co-Exclusive Worldwide Product License" as such terms are
defined in the Xenotech Agreement (and in the forms
attached thereto as exhibits) granted from XT to ABX
pursuant to the terms of the Xenotech Agreement when used
in connection with [***] in the Agreement or when used in
the [***] Product License. "
(c) The definition of "[***] " in Section 1.1 of the Agreement and in
the [***] Product License is hereby deleted in its entirety and replaced with
the following:
""[***]" shall mean [***]."
(d) The definition of "Territory" in Section 1.1 of the Agreement is
hereby deleted in its entirety and replaced with the following:
""Territory" shall, for purposes of the GNE Option
Agreement and the [***] Product License, be worldwide;
however, the parties acknowledge that, for purposes of the
[***] Product License, if ABX is unable to secure an
Exclusive Worldwide Product License, the "Territory" may
not include Japan, Taiwan and Korea (including North
Korea)."
(e) The Agreement is hereby amended by adding the following definitions
to Section 1 of the Agreement in proper alphabetical order:
(i) ""Amendment" shall mean that certain "Amendment No.1 to
Research License and Option Agreement" between the parties
effective as of June 18, 1998."
(ii) ""[***] Product License" shall mean that certain agreement
between the parties (if entered into at all) substantially
in the form attached hereto as Exhibit B and incorporated
herein, as the same may be amended from time to time;
provided, however, that (i) references therein to [***]
shall be changed to [***] and (ii) other changes reasonably
required to reflect the change in Product Antigen from
[***] to [***], including the changes provided in Section
1(p) of the Amendment, shall apply."
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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(f) The Agreement is hereby amended by adding the following definition
to Section 1 of the Agreement in proper alphabetical order:
""[***]" shall mean [***]."
(g) Except as provided in Sections 1(i), 1(j), 1(k) and 1(l) of this
Amendment and in Section 1.6 of the Agreement, the Agreement is hereby amended
by replacing "[***] Product License" with "[***] Product License or the [***]
Product License".
(h) The first sentence of Section 2.1.2 of the Agreement is hereby
deleted in its entirety and replaced with the following:
"ABX agrees to provide to GNE, solely for use in creating
Antibodies to [***] or [***], as the case may be, for the
creation, identification, analysis, manufacture, research,
development and commercialization of Products in accordance
with this Agreement and the [***] Product License and/or
the [***] Product License (if entered into at all by the
parties), numbers and types of sterilized male XenoMouse
Animals as follows: (a) as soon as practicable after the
Option Effective Date, ABX will ship to GNE sterilized male
XenoMouse Animals of the types, strains and quantities
specified in item number 19 of the Research Plan (regarding
[***]); and (b) as soon as practicable after the effective
date of this Amendment, ABX will ship to GNE up to [***]
sterilized male XenoMouse Animals, to be reimbursed by GNE
at [***], (regarding [***])."
(i) Section 2.2(f) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"GNE shall not transfer, sell, have sold, lease, offer to
sell or lease, otherwise transfer title to, or otherwise
distribute or commercialize any Antibody or Product without
first entering into (i) the [***] Product License with ABX
in the case where the applicable Product Antigen for the
Product is [***] or (ii) the [***] Product License in the
case where the applicable Product Antigen for the Product
is [***];"
(j) Section 2.4 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"2.4 Limitation. Notwithstanding any other provision of
this Agreement, in no event shall GNE (a) file, or
authorize any third party to file, an IND (or a similar
filing with an equivalent agency or regulatory body in any
country) with respect to a Product or (b) initiate, or
authorize any third party to initiate, clinical trials in
humans with respect to a Product or (c) sell, or authorize
any third party to sell, a Product, in each
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 4
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case unless and until GNE has entered into the [***]
Product License, if the applicable Product Antigen for the
Product is [***], or the [***] Product License if the
applicable Product Antigen for the Product is [***]."
(k) Section 3.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"3.1 Option. Subject to the terms and conditions set forth
in this Agreement, ABX hereby grants to GNE exclusive
options (the "Option" or "Options") to obtain the right to
enter into (i) the [***] Product License between GNE and
ABX with regard to [***], which Option may be exercised by
GNE pursuant to the procedures set forth in this Article 3
with respect to [***], on or before 5 o'clock p.m. (Pacific
Time) on December 10, 1998 and/or (ii) the [***] Product
License between GNE and ABX with regard to [***], which
Option may be exercised by GNE pursuant to the procedures
set forth in this Article 3 with respect to [***], on or
before 5 o'clock p.m. (Pacific Time) on June 10, 1999 but
not prior to Jan1, 1999 (each being referred to herein as
an "Option Expiration Deadline")."
(l) Section 3.2.2 is hereby deleted in its entirety and
replaced with the following: "3.2.2. Obtaining Product
License from XT to ABX for [***] and/or [***]. As soon as
practicable after GNE's exercise of an Option (if any) in
accordance with Section 3.2.1 above with respect to a
particular Product Antigen, ABX shall exercise its option
under the Xenotech Agreement to obtain a Product License
with respect to such Product Antigen from XT. In the event
that GNE timely exercises the Option, ABX shall enter into
such Product License with XT as soon as reasonably
practicable and in any event prior to when GNE and ABX
enter into the [***] Product License or the [***] Product
License, as the case may be, and ABX shall send written
notice to GNE at such time ABX has entered into such
Product License with XT, together with a complete copy
(excepting only financial terms) of the fully signed
Product License. At such time as ABX enters into such
Product License and notifies GNE thereof as required
hereunder, GNE and ABX shall promptly execute either the
[***] Product License, as set forth in the form attached
hereto as Exhibit B, or the [***] Product License, as the
case may be. If GNE timely exercises its Option hereunder,
ABX shall use its best efforts to enter into (i) the
specified Product License with XT and the [***] Product
License with GNE with regard to the Option for [***], by
not later than 5 o'clock p.m. (Pacific Time) on December
31, 1998 and (ii) the specified Product License with XT and
the [***] Product License with GNE with regard to the
Option for [***], by not later than 5 o'clock p.m. (Pacific
Time) on June 30, 1999. If GNE timely exercises an Option
hereunder and ABX fails or is unable to enter into the
specified Product License with XT and the [***] Product
License or the [***] Product License with GNE, as the case
may be,
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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(i) with regard to the Option for [***], by not later than
5 o'clock p.m. (Pacific Time) on December 31, 1998 and (ii)
with regard to the Option for [***], by not later than 5
o'clock p.m. (Pacific Time) on June 30, 1999, GNE shall
(subject to the notice and cure provisions of Section 8.3)
be entitled to all available remedies conferred on it under
this Agreement and by law or in equity. Subject to the
foregoing and to the proviso at the end of this sentence,
it is understood that once GNE has exercised an Option with
regard to a particular Product Antigen, GNE shall be
obligated to enter into the [***] Product License or the
[***] Product License, as the case may be, and promptly
thereafter pay ABX the License Fee as set forth in Section
3.1 thereof, it being understood and agreed that if GNE
fails or is unwilling to enter into the [***] Product
License or the [***] Product License, as the case may be,
after having exercised the relevant Option and unless such
failure is due to inaction of ABX or breach of ABX of its
obligations, then GNE shall pay to ABX an amount equal to
such License Fee within fifteen (15) days of the date that
ABX offers to execute and enter into the [***] Product
License or the [***] Product License, as the case may be,
with GNE; provided, however, that in the event that
anything is contemplated to be set forth on Schedule A of
the [***] Product License or the [***] Product License, as
the case may be, GNE shall not be obligated to enter into
such license or pay the amount set forth in this sentence.
It is understood and agreed that, notwithstanding any other
provision of this Agreement, in the event that the Product
License entered into by ABX with XT is a "Qualified
Exclusive Worldwide Product License" (or a "Co-Exclusive
Worldwide Product License" in the case of [***]) rather
than an "Exclusive Worldwide Product License" (as each term
is defined in the Xenotech Agreement), then (a) GNE shall
not be obligated to enter into the [***] Product License or
the [***] Product License, as the case may be, with ABX or
pay the amount set forth in the previous sentence, (b) ABX
shall not, if ABX used commercially reasonable best efforts
to obtain an "Exclusive Worldwide Product License," be in
breach of this Agreement and (c) in the event that GNE
enters the [***] Product License or the [***] Product
License notwithstanding the fact that the Product License
is a "Qualified Worldwide Exclusive Product License" (or a
"Co-Exclusive Worldwide Product License" in the case of
[***]), then the definitions of "Product License" and
"Territory" in the [***] Product License and/or the [***]
Product License, as the case may be, shall be amended
accordingly, and the parties shall make such other changes
as are necessary to reflect the nature of the relevant
Product License."
(m) Section 4.3 of the Agreement is hereby amended by adding the
following sentence to the end thereof:
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 6
-6-
"It is understood that the "Territory" for purposes of this
Section 4.3 shall be worldwide, whether or not the
"Territory" for purposes of the [***] Product License is
worldwide."
(n) The Agreement is hereby amended such that each reference to "[***]"
in the Agreement is also a reference to [***], unless the circumstances dictate
otherwise. The parties acknowledge that references to the "Product Antigen"
and/or "[***]" in Sections 7.1(i), (j) and (k) shall not also be references to
[***].
(o) The Agreement is hereby amended by adding the following subsection
7.1(p) immediately after Section 7.1(o):
"(p) ABX shall promptly nominate [***] under Section 7.1 of
the Xenotech Agreement, at the next meeting of the Xenotech
board of directors following the effective date of this
Amendment, and use reasonable efforts to take every step
necessary under the Xenotech Agreement to obtain the right
to acquire an "Exclusive World Wide Product License" under
the Xenotech Agreement to [***]; it is understood and
agreed that ABX is nominating [***] under Section 7.1 of
the Xenotech Agreement at the request of GNE and ABX cannot
promise that it will be successful in obtaining an
Exclusive Worldwide Product License;"
(p) In the case where Exhibit B is used to generate a [***] Product
License, Section 9.1(h) of Exhibit B is hereby deleted in its entirety and
replaced with the following:
"(a) on or before the Effective Date, ABX entered into a
Product License for the Product Antigen with XT under the
Xenotech Agreement and that Product License is an
[Exclusive Worldwide Product License] [Exclusive Qualified
Worldwide Product License] [Co-Exclusive Worldwide Product
License]* (as such term is defined in the Xenotech
Agreement), and GNE is ABX's exclusive sublicensee of ABX
for all uses of the Licensed Technology under the Product
License relating to Products in the Field throughout the
Territory, as provided in this Agreement; [provided,
however, JTI will have co-exclusive rights in certain
territories]*;
* in the case the Product License is a Co-Exclusive
Worldwide Product License;"
SECTION 2. Effect on [***] Product License. The parties agree that, in
the event that GNE exercises its Option with regard to [***], the Form of [***]
Product License attached to the Agreement as Exhibit B will be used to generate
a [***] Product License and will be changed only to the extent required (i) to
reflect the change in Product Antigen from [***] to [***], (ii) by the amendment
provided for in Section 1(n) of this Amendment, and (iii) pursuant to clause (c)
of the last sentence of Section 3.2.2 of
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 7
-7-
the Agreement, as amended by this Amendment, but that the economic terms and
other terms not specific to the Product Antigen, unless otherwise agreed to by
the parties in writing, shall remain unchanged.
SECTION 3. Representations and Warranties. Both parties hereby reaffirm
and remake the representations, warranties and covenants contained in Section 7
of the Agreement, in each case as of the Effective Date of this Amendment,
provided, however, that ABX reaffirms and remakes the representations contained
in Sections 7.1(i), (j) and (k) only with respect to [***], and not with respect
to [***].
SECTION 4. Reference to and Effect on the Agreement. (a) On and after
the date hereof, each reference in the Agreement to "this Agreement",
"hereunder", "hereof", herein", or words of like import referring to the
Agreement, and each reference to the Agreement in the [***] Product License,
shall mean and be a reference to the Agreement as amended hereby.
(b) Except as specifically amended under Section 1 hereof, the Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
SECTION 5. Governing Law. This Amendment shall be interpreted and
construed in accordance with the laws of the State of California, without regard
to conflict of law principles.
SECTION 6. Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed to be an original and both together shall be
deemed to be one and the same agreement.
[Rest of Page Intentionally Left Blank]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
<PAGE> 8
-8-
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective duly authorized officers as of the day and year
first above written.
ABGENIX, INC. GENENTECH, INC.
By: /s/ Raymond Withy By: /s/ [unreadable]
------------------------------ ------------------------------
Printed Name: Printed Name:
-------------------- --------------------
Title: Title:
--------------------------- ---------------------------
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the references to our firm under the captions "Selected
Financial Data" and "Experts" and to the use of our reports dated January 23,
1998 in Amendment No. 7 to the Registration Statement (Form S-1) and related
Prospectus of Abgenix, Inc. for the registration of 3,450,000 shares of its
common stock.
/s/ Ernst & Young LLP
Palo Alto, California
June 29, 1998
