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EXHIBIT 10.38
MEMORANDUM OF UNDERSTANDING
BETWEEN RESEARCH CORPORATION TECHNOLOGIES AND ABGENIX, INC.
Research Corporation Technologies, Inc. ("RCT") and Abgenix, Inc.
("Abgenix") desire to enter a business arrangement to commercialize antibodies
binding to CD45 [*] for the treatment of transplant rejection, autoimmune
disorders and other inflammatory disorders. RCT owns a patent portfolio
protecting these antibodies. Collectively, the antibodies, data relating to the
development work conducted by RCT or RCT contractors, know-how related to the
antibodies and the patents are referred to as the "CD45 Technology." RCT has
developed the CD45 Technology through pre-clinical studies and now desires to
find a partner to advance the CD45 Technology to the clinic. Abgenix possesses
expertise in developing human therapeutic antibodies and also owns or has rights
to technologies capable of creating fully human antibodies. This human antibody
technology involves proprietary genetically engineered animals (mice), know-how
and a related patent portfolio collectively referred to as the "XenoMouse
Technology."
SECTION 1. Confidentiality and Prior Agreements. To date, RCT and
Abgenix have been subject to that Confidential Disclosure Agreement between RCT
and Abgenix effective June 16, 1997. RCT and Abgenix agree that inquiries and
information related to this MOU will be subject to the terms of that
Confidential Disclosure Agreement. [*] Any research by either RCT or Abgenix
involving both XenoMice and the CD45 Technology will continue to be governed by
these agreements until they are superseded by legally binding agreements based
on the Commercialization terms contained in this MOU.
SECTION 2. Good Faith. RCT and Abgenix agree to use the
Commercialization Terms outlined in SECTION 3 below as a basis for the
negotiation of binding agreements, and further agree to negotiate in good faith
regarding any changes that may be made to final binding agreements.
SECTION 3. Commercialization Terms.
1. RCT is continuing in its effort to advance the development of the
CD45 Technology through preclinical studies. To that end, RCT intends to
actively seek a third party licensee or strategic pharmaceutical development
partner ("Partner") to complete clinical development and sell a pharmaceutical
product based on the CD45 Technology. RCT intends to find a Partner prior to
filing of an IND for a lead product; however, RCT may elect to file an IND and
conduct an initial clinical trial in order to attract a Partner.
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
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2. RCT will contract with Abgenix to generate fully human antibodies
to CD45RB using the XenoMouse Technology ("Abgenix Contract"). The Abgenix
Contract shall provide a plan of research and development (the "Research Plan")
[*]. The Research Plan for the Abgenix Contract is further outlined below.
RESEARCH PLAN FOR ABGENIX CONTRACT
Goal: Utilizing the XenoMouse Technology, [*]
a. Both Abgenix and RCT will [*]
b. [*]
c. [*]
d. Abgenix will [*]
e. Abgenix will [*]
f. Abgenix will [*]
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* 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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g. Abgenix will produce [*] that satisfy the criteria set forth in
the Goal. As an alternative, RCT and Abgenix may elect to produce [*] should
this strategy better satisfy the Goal.
3. Abgenix will grant RCT an option (the "Abgenix Option") to acquire an
exclusive worldwide license (with rights to sublicense to a Partner) to the
XenoMouse Technology for making, using and selling the CD45 isoform antibodies
that are the subject of RCT's patent rights or know-how, and all improvement
inventions, know-how and data that results from the Abgenix Contract ("Abgenix
License"). The Abgenix License shall also grant RCT the right to conduct (on its
own or through a sublicensee such as a Partner) human clinical studies for
commercial or regulatory purposes. [*]
Key financial terms of the Abgenix License are as follows:
RCT shall pay Abgenix [*] of all Sublicense Revenues received by RCT
from the Partner, but no less than [*] of the net sales by the Partner of
products made and sold utilizing the rights granted under the Abgenix
Technology. Sublicense Revenues shall include license fees, milestone payments,
shares of equity, research/development reimbursement payments and royalties.
Should RCT be unable to secure a partner that will itself make and sell
human pharmaceutical products based on the CD45 Technology and using the
XenoMouse Technology, RCT may elect to directly (or through a related entity
"Newco", as described below) make and sell such human pharmaceutical products.
If RCT so elects, RCT (or Newco) shall make the following payments to Abgenix:
(I) [*]
(II) [*]
(III) [*]
(IV) [*]
(VI) [*]
* The payment will not be made if RCT (or Newco) should notify Abgenix
that [*]. In such a case, RCT (or Newco) will forfeit rights to manufacture and
sell human pharmaceutical products; however, RCT (or Newco) will continue to
enjoy the rights granted under the Abgenix Option and Abgenix License to grant
sublicenses to sell human pharmaceutical products under the Abgenix License to a
Partner.
4. To facilitate the commercialization of the CD45 Technology and file
an IND if needed, RCT may create a new entity, Newco, to develop and
commercialize the CD45 Technology. RCT would give Newco worldwide exclusive
rights to commercialize the CD45 Technology through
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
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a license (RCT License). Concurrently with the grant of the RCT License, RCT
would assign the Abgenix Option (or Abgenix License if converted), the Abgenix
Contract and related obligations from both agreements to Newco. Newco, with
management assistance from RCT, [*] while developing the CD45 Technology toward
and possibly into clinical trials. Should Newco [*], it may elect to directly
make and sell human pharmaceutical products under the RCT License and Abgenix
License as long as Newco has made all required payments to Abgenix in Section
3.3 above.
5. At any time during the development of the CD45 Technology by RCT or
Newco, Abgenix is free to enter business discussions with RCT or Newco to
acquire a sublicense to the CD45 Technology as the Partner. [*]
SECTION 4. Binding Effect. RCT and Abgenix agree that the Abgenix
Contract, the Abgenix Option, the Abgenix License and any related agreements
shall include, as appropriate, the terms and conditions set forth in this MOU,
and will not be changed without consent of RCT and Abgenix.
RESEARCH CORPORATION TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, President
ABGENIX, INC.
By: /s/ R. Xxxxx Xxxxx
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R. Xxxxx Xxxxx, President and CEO
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* 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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