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EXHIBIT 10.14
CONFIDENTIAL TREATMENT REQUESTED BY ABGENIX, INC.
STOCK PURCHASE
and
TRANSFER-AGREEMENT
THIS AGREEMENT is made and entered into this 15th day of July, 1996, by and
between CELL GENESYS, INC. ("CG") and ABGENIX, INC. ("ABGENIX") .
CG is engaged, among other activities, in the Antibody Business as defined
in Article 1.
CG's Board of Directors has determined that CG will (a) transfer to ABGENIX
the assets of the Antibody Business and other specified assets and liabilities
related to the Antibody Business as set forth herein, (b) provide $10,000,000 in
cash to ABGENIX to fund its operations, (c) cause ABGENIX to issue to CG shares
of ABGENIX's Series A Senior and Series 1 Subordinated Convertible Preferred
Stock as set forth in Article 2, and (d) lend ABGENIX up to $4,000,000 in
exchange for a convertible promissory note.
The parties hereto have determined that it is necessary and desirable to
set forth in this Agreement and in the Transaction Agreements (as defined in
Section 3(h)) the principal corporate transactions determined by CG and ABGENIX
to be appropriate to effect the transfer of the Antibody Business to ABGENIX and
to set forth other agreements and undertakings by and between CG and ABGENIX.
Simultaneously with the execution of this Stock Purchase and Transfer
Agreement, CG and ABGENIX are entering into the Transaction Agreements.
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NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants and agreements, and upon the terms and
subject to the conditions hereinafter set forth, the parties do hereby agree as
follows:
1. Definitions.
"Antibody Business" shall mean the discovery, research, development,
manufacturing, marketing and use for any purpose of all products that contain
antibodies (excluding any Universal Receptor Product and any Gene Therapy
Product), from any source, and the discovery, creation, development and use of
transgenic mouse strains that make antibodies containing human variable regions.
"ABGENIX Biological Materials" shall mean, without limitation, all
cell lines, hybridomas, antibodies, YACs, vectors, mice and all other materials
that relate to the Antibody Business as set forth on Exhibit A-1 hereto (which
such Exhibit shall be updated and completed by mutual agreement of the parties
no later than September 15, 1996).
"CG Biological Materials" shall mean, without limitation, the
materials as set forth on Exhibit A-2 hereto (which such Exhibit shall be
updated and completed by mutual agreement of the parties no later than September
15, 1996).
"Closing" shall have the meaning given in Section 5.1.
"Collaboration Agreement" shall mean the Collaboration Agreement among
CG, JT Immunotech USA Inc. and Xenotech, L.P. effective June 12, 1991, as
amended.
"Gene Therapy Product" shall mean a product based on the transfer or
use of DNA, RNA, or hybrids thereof to treat or
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prevent disease by means of ex vivo or in vivo gene delivery, including without
limitation the use of both viral and non-viral gene transfer systems.
"Joint Biological Materials" shall mean, without limitation, the materials
as set forth on Exhibit A-3 hereto (which such Exhibit shall be updated and
completed by mutual agreement of the parties no later than September 15, 1996).
"Know-How" shall mean, without limitation, all methods, prototypes,
techniques, processes, technical and other information, unpatented inventions,
trade secrets, concepts, ideas, data, experimental methods and results,
sequences, assays, descriptions, protocols, business or scientific plans,
correspondence, competitor information, depictions, supplier lists and any other
information that relates to or is useful in the Antibody Business.
"MRLOA" shall mean the Master Research License and Option Agreement
effective June 28, 1996, by and among CG, Japan Tobacco Inc., and Xenotech, L.P.
"Patent Rights" shall mean (i) all U.S. patents and patent applications
listed on Exhibit B hereto and patents issuing on such applications; (ii) any
continuations, continuations-in-part, divisionals, reexaminations, reissues or
extensions of any of (i) above and (iii) any foreign counterparts issued or
issuing on any of (i) or (ii) above.
"Note" shall mean the Convertible Promissory Note in the form of Exhibit I.
"Preferred Stock" shall have the meaning given in Section 2.1.
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"Transaction Agreements" shall mean the Services Agreement, the
Immunization Services Agreement, the Governance Agreement, the Tax Sharing
Agreement, the Gene Therapy Rights Agreement, the Voting Agreement, the Note,
and the Patent Assignment Agreement, each by and between CG and ABGENIX and of
even date herewith, attached hereto respectively, as Xxxxxxxx X, X, X, X, X, X,
X and J.
"Universal Receptor Product" shall have the meaning set forth in the MRLOA.
2. Purchase and Sale of Shares of Preferred Stock; Loan.
2.1 Subject to the terms and conditions hereof and in reliance upon
the representations, warranties, covenants and agreements hereinafter set forth,
ABGENIX shall issue and sell to CG, and CG shall subscribe for and purchase from
ABGENIX 1,691,667 shares of Series A Senior Convertible Preferred Stock and
2,058,333 shares of Series 1 Subordinated Convertible Preferred Stock of ABGENIX
(collectively, the "Preferred Stock"), having the designations, powers,
preferences and voting, conversion and other special rights and qualifications,
limitations and restrictions set forth in Exhibit K hereto for the consideration
specified in Section 5 hereof.
2.2 Subject to the terms and conditions hereof, CG agrees to make a
loan to ABGENIX in the principal amount of up to $4,000,000 in exchange for
which ABGENIX will execute the Note.
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3. Representations and Warranties of ABGENIX.
ABGENIX represents and warrants to CG that:
(a) Organization, Good Standing, Power, Etc. ABGENIX (i) is a
corporation duly incorporated; validly existing and in good standing under the
laws of Delaware; (ii) has not yet commenced to do business in any other
jurisdiction; and (iii) has all requisite corporate power and authority to (x)
own or lease and operate its properties and carry on its business as presently
being conducted and (y) execute, deliver and perform this Agreement and
consummate the transactions contemplated hereby.
(b) Articles of Incorporation and By-Laws. ABGENIX's Certificate of
Incorporation and By-Laws, copies of which are attached hereto as Exhibits L and
M, are in full force and effect and ABGENIX is not in violation of any of the
provisions thereof.
(c) Capitalization. The authorized capital stock of ABGENIX consists
as of the date hereof of 20,000,000 shares of Preferred Stock, par value $0.0001
per share, of which on the date hereof no shares are issued and outstanding, and
50,000,000 shares of Common Stock, par value $0.0001 per share, of which on the
date hereof, no shares are issued and outstanding.
(d) Outstanding Rights to Purchase Securities. ABGENIX does not have
outstanding any options, warrants, or other rights to purchase or to convert any
security or obligation into, any shares of its capital stock, nor has ABGENIX
agreed to issue or sell any shares of its capital stock; however, ABGENIX has
committed to adopt a stock plan covering 1,600,000 shares of its Common Stock
for grants of stock options and restricted stock to employees, consultants and
directors.
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(e) Valid Issuance. The Preferred Stock, when issued, paid for and
delivered as contemplated by this Agreement, will be validly issued and fully
paid.
(f) Authorization of Agreement. This Agreement and the Transaction
Agreements have been duly and validly authorized, executed and delivered by
ABGENIX (and assuming due authorization, execution and delivery by CG)
constitute valid and binding obligations of ABGENIX.
(g) Effect of Agreement, Etc. The execution, delivery and performance
of this Agreement and consummation of the transactions contemplated hereby in
the manner contemplated herein will not, to the reasonable best knowledge of
ABGENIX, violate any material provisions of law, statute, rule or regulation to
which ABGENIX is subject.
(h) Government Consents. To the reasonable best knowledge of ABGENIX,
no consent; authorization, license, permit, registration or approval of, or
exemption or other action by, any governmental or public body or authority
except the Commissioner of Corporations of the State of California is required
in connection with (i) the execution, delivery, and performance by ABGENIX of
this Agreement; (ii) the issuance, sale and delivery of the Preferred Stock; and
(iii) the execution, delivery and performance in substantially the forms
attached hereto of the Transaction Agreements.
4. Representations and Warranties of CG.
CG represents and warrants to ABGENIX that:
(a) Organization, Good Standing, Power, Etc. CG (i) is a corporation
duly incorporated, validly existing and in
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good standing under the laws of the State of Delaware; (ii) is duly qualified to
do business and is in good standing in each United States jurisdiction in which
failure to do so would have a material adverse effect on its business; and (iii)
has all requisite power and authority to (x) own or lease and operate its
properties and carry on its business as presently being conducted and (y)
execute, deliver and perform this Agreement and consummate the transactions
contemplated hereby and thereby.
(b) Authorization of Agreements. This Agreement and the Transaction
Agreements have been duly and validly authorized, executed and delivered by CG
and (and assuming due authorization, execution and delivery by ABGENIX)
constitute the valid and binding obligations of CG;
(c) Government Consents. To the reasonable best knowledge of CG; no
consent, authorization, license, permit, registration or approval of, or
exemption or other action by, any governmental or public body or authority
except the Commissioner of Corporations of the State of California is required
in connection with (i) the execution, delivery and performance by CG of this
Agreement and (ii) the execution, delivery and performance of the Transaction
Agreements.
(d) Effect of Agreements, Etc. The execution, delivery and performance
of this Agreement, and the Transaction Agreements and consummation of the
transactions contemplated hereby and thereby in the manner contemplated herein
and therein will not, with or without the giving of notice or the lapse of time
or both, to the reasonable best knowledge of CG (i) violate any material
provisions of law, statute, rule or regulation to
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which CG is subject; (ii) violate any judgment, order, writ, injunction or
decree of any court applicable to CG; or (iii) result in the breach of, or
conflict with any material term, covenant, condition or provision of, require
the modification or termination of, constitute a default under, or result in the
creation or imposition of any material lien, pledge, mortgage, claim, charge or
any encumbrance whatsoever upon any of the properties or assets of CG pursuant
to any corporate charter, by-law, commitment, contract or other agreement or
instrument to which CG is a party or by which any of its assets or properties is
or may be bound or affected or from which CG derives material benefit.
(e) Investment Purposes. It is acquiring the Preferred Stock and Note
for its account as principal, for investment purposes only, and not with a view
to, or for, resale, distribution or fractionalization thereof, in whole or in
part, and no other person has a direct or indirect beneficial interest in the
Preferred Stock or Note.
(f) Private Placement. It acknowledges that the offering and sale of
the Preferred Stock and the Note are intended to be exempt from registration
under the Securities Act of 1933, as amended (the "Securities Act"), by virtue
of Section 4(2) of the Securities Act and the provisions of Regulation D
promulgated thereunder.
(g) Accredited Investor. It is capable of evaluating the merits and
risks of its investment in ABGENIX and has the capacity to protect its own
interests.
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5. Closing; Purchase Price.
5.1 Subject to the terms and conditions of this Agreement, the
issuance and sale of the Preferred Stock and consummation of the other
transactions contemplated hereby (the "Closing") shall take place at 3:0O P.M,
on July 19, 1996 or such other time or date as the parties may agree at the
offices of CG at 000 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxx.
5.2 Subject to the terms and condition of this Agreement, ABGENIX will
deliver to CG at the Closing:
5.2.1 Certificates for the shares of Preferred Stock registered
in the name of CG against payment therefor as set forth in Section 5.3 hereof;
5.2.2 duly executed copies of the Transaction Agreements; and
5.2.3 the Note; provided that if at the Closing a permit has not
been received from the California Department of Corporations for issuance of the
Note, the parties shall use good faith efforts to obtain such permit and the
Note shall be delivered upon its receipt.
5.3 Subject to the terms and conditions of this Agreement, CG will:
5.3.1 In exchange for the shares of Series A Senior Convertible
Preferred Stock, (a) deliver or transfer to the account of ABGENIX the sum of
$10 million in readily available funds and (b) assign the employee notes in the
aggregate principal amount of $150,000 listed on Exhibit N hereto;
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5.3.2 In exchange for the shares of Series 1 Subordinated
Preferred Stock, assign to ABGENIX all of its right, title and interest in and
to the assets of the Antibody Business including but not limited to (a) the
Patent Rights, (b) all Know-How that relates exclusively to the Antibody
Business and all Know-How as defined in the Collaboration Agreement (c) the
ABGENIX Biological Materials, (d) the equipment, furniture and fixtures leased
by CG and used in the Antibody Business as listed on Exhibit O hereto (which
such Exhibit shall be updated and completed by mutual agreement of the parties
no later than September 15, 1996), subject to the assumption by ABGENIX of the
remaining lease obligations for such capital equipment, (e) existing agreements
that relate to the Antibody Business including but not limited to the agreements
listed on Exhibit P hereto (which such Exhibit shall be updated and completed by
mutual agreement of the parties no later than September 15, 1996), subject to
the assumption by ABGENIX of and its agreement to perform any obligation
thereunder and the indemnification agreement of ABGENIX as set forth in Section
8.3, (f) CG's partnership interest in Xenotech, L.P., (g) all shares of capital
stock owned by CG in Xenotech, Inc., and (h) the Mice or rights to the Mice as
such term is defined in the MRLOA;
5.3.3 Grant to ABGENIX as further consideration (and CG hereby
makes such grant effective at the Closing) a worldwide, royalty-free, fully paid
up, perpetual, irrevocable license, with the right to sublicense, to use the
Joint Biological Materials and to practice any Know-How owned or controlled by
CG that relates both to the Antibody Business and
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to other businesses of CG, and to make, have made, sell or otherwise distribute
products incorporating the Joint Biological Materials and such Know-How, which
license shall be for use solely in the Antibody Business and the Expanded Field
(as such term is defined in the Collaboration Agreement), and which shall be
exclusive within such field of use;
5.3.4 Grant to ABGENIX as further consideration (and CG hereby
makes such grant effective at the Closing) a worldwide, royalty-free, fully paid
up, perpetual, irrevocable license, with the right to sublicense, to use the CG
Biological Materials, and to make, have made, sell or otherwise distribute
products incorporating the CG Biological Materials, which license shall be for
use solely in the Antibody Business, and which shall be exclusive within such
field of use;
5.3.5 Grant to ABGENIX as further consideration (And CG hereby
makes such grant effective at the Closing) a nonexclusive, worldwide,
royalty-free, fully paid up, perpetual, irrevocable license, with the right to
sublicense, to practice any Know-How and to use any reagents and other materials
owned or controlled by CG that may be unrelated to the Antibody Business, and to
make, have made, sell or otherwise distribute products incorporating such
Know-How and materials, to the extent required to practice the Patent Rights and
the Know-How assigned to ABGENIX pursuant to Section 5.3.2 or licensed under
Sections 5.3.3 or 5.3.4;
5.3.6 Deliver to ABGENIX duly executed copies of the Transaction
Agreements.
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5.4 Subject to the terms and conditions of this Agreement, ABGENIX
will grant to CG (and ABGENIX hereby makes such grant effective at the Closing),
a worldwide, royalty-free, fully paid up, perpetual, irrevocable license, with
the right to sublicense, under Patent Rights arising under patent docket number
Cell 22 (as set forth on Exhibit B), to make, have made, use, sell or otherwise
distribute products covered by such patent outside of the Antibody Business,
which license shall be exclusive in such field of use except for any rights of
JT Immunotech USA Inc., in the Expanded Field.
5.5 Notwithstanding the provisions of Section 5.3.2, no agreement
shall be assigned hereunder if such assignment would constitute a breach
thereof. If any agreement set forth above cannot be assigned by CG to ABGENIX
because, despite its reasonable best efforts, CG is unable to secure the
required consent of a third party to such assignment, CG, if intellectual
property is involved, will grant to ABGENIX an exclusive, worldwide,
royalty-free license with right of sublicense to the applicable intellectual
property rights to the extent it is legally permitted to do so and subject to
ABGENIX's agreement to be bound by and perform all the obligations of CG under
any such agreement.
6. Registration Rights; Legend.
6.1 Registration Rights.
6.1.1 Request for Registration.
(a) If ABGENIX shall receive, at any time after six months
following the initial public offering of Common Stock of ABGENIX (other than
pursuant to a registration statement
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relating either to the sale of securities to employees of ABGENIX pursuant to a
stock option, stock purchase or similar plan or an SEC Rule 145 transaction), a
written request from CG, that ABGENIX file an underwritten registration
statement under the Securities Act covering the registration of at least five
percent of the Registrable Securities held by CG (a "Demand Registration"),
ABGENIX shall, subject to the limitations set forth below, as soon as
practicable, use its reasonable best efforts to effect such registration under
the Securities Act. "Registrable Securities" shall mean all Common Stock of
ABGENIX issued or issuable upon conversion of the Series A Senior Convertible
Preferred Stock, Series 1 Subordinated Convertible Preferred Stock and the Note,
including Common Stock issued pursuant to stock splits, stock dividends and
similar distributions with respect to such shares.
(b) The underwriter shall be selected by CG but shall be
reasonably acceptable to ABGENIX. CG (together with ABGENIX) shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting.
(c) In addition, ABGENIX shall not be obligated to effect,
or to take any action to effect, any registration:
(1) Within 90 days after the effective date of any
registration statement effected by ABGENIX, whether for its own Account or for
the account of others; or
(2) On Form S-1 (or any comparable or successor form to
such form) after ABGENIX has effected one
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Demand Registration and such registration has been declared or ordered
effective. CG shall nevertheless have the continuing right to additional
registrations on Form S-3 (or any comparable successor form to such form) even
though it has already had an effective Demand Registration so long as the gross
proceeds of the offering are expected to be at least $500,000. Registrations on
Form S-3 need not be underwritten.
(d) ABGENIX shall use its reasonable best efforts to
register and qualify the securities covered by any such registration statement
under such other securities or Blue Sky laws of such jurisdictions in the United
States as shall be reasonably requested by CG; provided that ABGENIX shall not
be required in connection therewith or as a condition thereto to qualify to-do
business or to file a general consent to services of process in any such states
or jurisdictions, unless ABGENIX is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
(e) ABGENIX shall cause all such securities registered
pursuant to any such registration to be listed on each U.S. securities exchange
or quotation system on which similar securities issued by ABGENIX are then
listed.
6.1.2 Piggyback Registration.
(a) In the event ABGENIX decides to register any of its
Common Stock (either for its own account or the account of a security holder or
holders exercising their respective demand registration rights) on a form that
would be suitable for a registration involving solely Common Stock held by CG,
ABGENIX will promptly give CG written notice thereof (which
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shall include a list of the jurisdictions in which ABGENIX intends to attempt to
qualify such securities under the applicable Blue Sky or other state securities
laws). Upon the written request of CG delivered to ABGENIX within 14 days after
delivery of such written notice from ABGENIX, ABGENIX shall, subject to the
limitations set forth below, include in such registration, all Registrable
Securities (as defined above) that CG has requested to be so registered.
(b) If the registration of which ABGENIX gives notice is for
a registered public offering involving an underwriting, ABGENIX shall so advise
CG as a part of the written notice given pursuant to Section 6.1.2(a) above. In
such event the right of CG to registration shall be conditioned upon such
underwriting and the inclusion of the Registrable Securities in such
underwriting to the extent provided in this section. CG shall (together with
ABGENIX and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement with the underwriter's
representative for such offering. CG shall have no right to participate in the
selection of the underwriters for an offering pursuant to this section.
(c) In the event the underwriter's representative advises CG
in writing that market factors (including, without limitation, the aggregate
number of shares of Common Stock requested to be registered, the general
condition of the market, and the status of the persons proposing to sell
securities pursuant to the registration require a limitation of
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the number of shares to be underwritten, the underwriter's representative may:
(1) in the case of ABGENIX's initial public offering,
exclude some or all Registrable Securities from such registration and
underwriting; and
(2) in the case of any registered public offering
subsequent to ABGENIX's initial public offering, limit the number of shares of
Registrable Securities to be included in such registration and underwriting;
provided, however, that the total number of shares of Registrable Securities CG
to be included in such registration shall not be less than one-third of the
total number of shares included in such registration. In such event, the
underwriter's representative shall so advise CG and the number of shares of
Registrable Securities that may be included in the registration and underwriting
(if any) shall be allocated (consistent with the preceding sentence) as follows:
among CG and holders of other securities requesting and legally entitled to
include shares of Common Stock in such registrations, in proportion, as nearly
as practicable, to the respective amounts of securities (including Registrable
Securities) requesting and entitled to inclusion in such registration held by CG
and such other holders at the time of filing of the registration statement. No
Registrable Securities or other securities excluded from the underwriting by
reason of this section shall be included in such registration statement.
(3) If CG disapproves of the terms of any such
underwriting, CG may elect to withdraw therefrom by
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written notice to ABGENIX and the underwriter delivered at least seven days
prior to the effective date of the registration statement. Any Registrable
Securities or other securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration.
(d) In the event of any registration of Registrable
Securities pursuant to this Section 6.1.2, ABGENIX will exercise its best
efforts to register and qualify the securities covered by the registration
statement under such other securities or Blue Sky laws of such jurisdictions as
CG shall reasonably request and as shall be reasonably appropriate for the
distribution of such securities; provided, however, that ABGENIX shall not be
required to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
6.1.3 Expenses. All expenses incurred by ABGENIX in complying
with Section 6 of this Agreement (including, without limitation, all federal and
state registration, qualification, and filing fees, printing expenses, fees and
disbursements of counsel for ABGENIX and one special counsel for CG (if
different from counsel for ABGENIX), blue sky fees and expenses, and the expense
of any special audits incident to or required by any such registration) shall be
borne by ABGENIX; provided, nonetheless, that all such expenses incurred in
connection with any registration that is solely for the benefit of CG shall be
paid by CG. Notwithstanding the above, ABGENIX shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 6 if the
registration request is subsequently
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withdrawn at the request of CG; provided, however, that if at the time of such
withdrawal, CG shall have learned of a material adverse event with respect to
the condition, business, or prospects of ABGENIX not known to CG at the time of
its request, then ABGENIX shall be required to pay such expenses. All
underwriting discounts and selling commissions applicable to the sale of
Registrable Securities pursuant to this Agreement shall be borne by the holders
of the securities registered pro rata on the basis of the number of shares
registered.
6.1.4 Indemnification.
(a) To the extent permitted by law, ABGENIX will indemnify
CG, each of its officers, directors and each person controlling CG, and each
underwriter, if any, and each person who controls any underwriter against all
claims, losses, damages or liabilities (or actions in respect thereof) to the
extent such claims, losses, damages or liabilities arise out of or are based
upon any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus or other document (including any related
Registration Statement) incident to any such registration, qualification or
compliance, or are based on any omission (or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by ABGENIX of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or any state
securities law, or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any state securities law, applicable to ABGENIX and relating to
action or inaction required
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of ABGENIX in connection with any such registration, qualification or
compliance; and ABGENIX will reimburse CG, each of its officers, directors, and
legal counsel, each such underwriter, and each person who controls CG or such
underwriter, for any legal and any other expenses reasonably incurred, as
incurred, in connection with investigating or defending any such claim, loss,
damage, liability or action; provided, however, that the indemnity contained in
this section shall not apply to amounts paid in settlement of any such claim,
loss, damage, liability or action if settlement is effected without the consent
of ABGENIX (which consent shall not unreasonably be withheld); and provided,
further, that ABGENIX will not be liable in any such case to the extent that any
such claim, loss, damage, liability or expense arises out of or is based upon
any untrue statement or omission based upon written information furnished to
ABGENIX by CG, its officers, directors, or legal counsel, underwriter, or
controlling person and stated to be specifically for use in connection with the
offering of securities of ABGENIX.
(b) To the extent permitted by law, CG will, if Registrable
Securities are included in the securities as to which such registration,
qualification or compliance is being effected pursuant to this Agreement,
indemnify ABGENIX, each of its directors and officers, each underwriter, if any,
of ABGENIX's securities covered by such a registration statement, each person
who controls ABGENIX or such underwriter within the meaning of the Securities
Act, against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based upon any untrue statement (or alleged untrue
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statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document (including any related
registration statement) incident to any such registration, qualification or
compliance, or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation by CG of the Securities Act, the 1934 Act or
any state securities law, or any rule or regulation promulgated under the
Securities Act, the 1934 Act or any state securities law, applicable to CG and
relating to action or inaction required of CG in connection with any such
registration, qualification or compliance; and will reimburse ABGENIX, such
directors, officers, partners, persons, law and accounting firms, underwriters
or control persons for any legal and any other expenses reasonably incurred, as
incurred, in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to ABGENIX by CG and stated to be specifically for use in connection
with the offering of securities of ABGENIX, provided, however, that CG's
liability under this section shall not exceed CG's proceeds from the offering of
securities made in connection with such registration; and provided, further,
that the indemnity contained in this section shall not apply to amounts paid in
settlement of any such claim, loss, damage,
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liability or action if settlement is effected without the consent of CG (which
consent shall not unreasonably be withheld).
(c) Promptly after receipt by an indemnified party under
this section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this section, notify the indemnifying party in writing of the commencement
thereof and generally summarize such action. The indemnifying party shall have
the right to participate in and to assume the defense of such claim, jointly
with any other indemnifying party similarly noticed; provided, however, that the
indemnifying party shall be entitled to select counsel for the defense of such
claim with the approval of any parties entitled to indemnification, which
approval shall not be unreasonably withheld; provided further, however, that if
either party reasonably determines that there may be a conflict between the
position of ABGENIX and CG in conducting the defense of such action, suit or
proceeding by reason of recognized claims for indemnity under this section, then
counsel for such party shall be entitled to conduct the defense to the extent
reasonably determined by such counsel to be necessary to protect the interest of
such party. The failure to notify an indemnifying party promptly of the
commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party,
to the extent so prejudiced, of any liability to the indemnified party under
this section, but the omission so to notify the indemnifying party will not
relieve such party of any liability that such
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party may have to any indemnified party otherwise other than under this Section
6.1.4.
6.1.5 Limitations on Registration Rights Granted to Other
Security Holders. ABGENIX shall not enter into any; agreement with any holder or
prospective holder of any securities of ABGENIX providing for the granting to
such holder of any registration rights, except that, with the consent of
ABGENIX, additional holders of ABGENIX securities may be granted registration
rights on a pari passu basis with CG with regard to any or all securities of
ABGENIX held by them.
6.1.6 Transfer of Rights. The registration rights granted by
ABGENIX to CG under this Agreement may be assigned to a transferee or assignee
of at least 250,000 shares of Common Stock, Series A Senior Convertible
Preferred Stock or Series 1 Subordinated Convertible Preferred Stock of ABGENIX
held by CG, including shares issued pursuant to stock splits, stock dividends
and similar distributions with respect to such shares, other than shares that
are sold to the public; provided that (a) ABGENIX is given written notice of
such transfer or assignment, stating the name and address of the transferee or
assignee and identifying the securities with respect to which such registration
rights are being assigned, and (b) the transferee or assignee of such rights is
not a person deemed by the Board of Directors of ABGENIX, in its best judgment,
to be a competitor of ABGENIX.
6.2 Legend. Each certificate representing (i) the Preferred Stock and
(ii) any other securities issued in respect of the Preferred Stock or upon any
stock split, stock dividend,
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recapitalization, merger, conversion, consolidation or similar event relating to
the Preferred Stock, shall be stamped or otherwise imprinted with a legend in
the following form (in addition to any legend or legends required under
applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY
RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY
STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT."
7. Inventions.
It is contemplated that the parties may continue to share facilities
for a period of six months after the Closing, and possibly longer by mutual
agreement. During such time employees of CG and ABGENIX may continue to exchange
ideas and concepts. Accordingly, the parties agree that:
(a) Any inventions made solely by CG employees shall be the property
of CG and any inventions made solely by employees of ABGENIX shall be the
property of ABGENIX, and the respective owner shall be responsible for filing,
prosecuting, maintaining, enforcing and defending any patent applications or
issued patents with respect thereto.
(b) Any inventions made jointly by employees of CG and employees of
ABGENIX shall be jointly owned by the parties, and the parties shall mutually
agree on how to share the responsibility and expense of filing, prosecuting,
maintaining,
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enforcing and defending any patent applications or issued patents with respect
thereto.
(c) Notwithstanding the foregoing, CG hereby agrees to grant to
ABGENIX an exclusive, worldwide, royalty-free license with right to sublicense
to practice in the Antibody Business CG's rights to any such jointly-owned
invention, whether or not patented, that is made during the period that the
parties jointly share facilities under the Services Agreement and for six months
thereafter, and ABGENIX hereby agrees to grant to CG an exclusive, worldwide,
royalty-free license with right of sublicense to practice outside the Antibody
Business ABGENIX's rights to any such jointly owned invention, whether or not
patented, that is made during the period of joint sharing of facilities under
the Services Agreement and for six months thereafter.
8. Certain Particular Agreements of CG and ABGENIX.
8.1 Except as expressly provided herein, ABGENIX and CG agree that
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, know-how), 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; provided, however,
that this exception shall not
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apply to information assigned or licensed exclusively by it to the other
hereunder;
(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;
(d) was subsequently lawfully disclosed to the receiving party by a
person other than the disclosing party; or
(e) was developed by the receiving party without reference to any
information or materials disclosed by the disclosing party.
Notwithstanding the foregoing, a party hereto 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 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, provided that if a party is required to make any
such disclosure of another 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, save to the extent
inappropriate in the case of patent applications, will use efforts consistent
with prudent business judgment to secure
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confidential treatment of such information prior to its disclosure (whether
through protective orders or confidentiality agreements or otherwise).
8.2 Effective at the Closing, ABGENIX assumes and agrees to discharge
when due all obligations of the Business, including without limitation all
obligations of CG under the agreements, contracts and other obligations
transferred under this Agreement. In addition, effective at the Closing, ABGENIX
agrees to assume liability for the accrued vacation time of those CG employees
transferred to ABGENIX.
8.3 To the extent permitted by law, ABGENIX shall indemnify CG, each
of its officers, directors, agents, and each person controlling CG, if any,
against all claims, losses, damages or liabilities (or actions in respect
thereof) to the extent such claims, losses, damages or liabilities arise out of
or are based upon (a) the breach or alleged breach by ABGENIX of any agreement,
contract or other obligation transferred to ABGENIX under this Agreement, (b)
claims relating to products manufactured and/or sold by or through ABGENIX, (c)
claims made by persons who immediately prior to the Closing were employees of CG
and who immediately after the Closing become employees of ABGENIX, and (d)
operation of the Business after the Closing; and ABGENIX agrees to reimburse
each indemnified person for any legal and other expenses reasonably incurred, as
incurred, in connection with investigating or defending any such claim, loss,
damage, liability or action; provided, that the indemnity contained in this
section shall not apply to amounts paid in settlement of any such claim, loss,
damage, liability or action
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if settlement is effected without the consent of ABGENIX (which consent shall
not unreasonably be withheld); and provided, further, that the indemnity
contained in this section shall not apply to any amounts covered by CG's
insurance.
8.4 Right of First Refusal.
(a) ABGENIX hereby grants to CG the right of first refusal to purchase
up to its Pro Rata Share of New Securities (as defined below) which ABGENIX may,
from time to time, propose to sell and issue so long as CG's Pro Rata Share is
at least fifty percent. CG may purchase said New Securities on the same terms
and at the same price at which ABGENIX proposes to sell the New Securities. The
"Pro Rata Share" of CG for purposes of this right of first refusal, is the ratio
of (i) the total number of shares of Common Stock held by CG (including any
shares of Common Stock into which shares of any convertible securities held by
CG are convertible) to (ii) the total number of shares of Common Stock and
Common Stock options outstanding immediately prior to the issuance of the New
Securities (including any shares of Common Stock into which outstanding shares
of convertible securities are convertible).
(b) "New Securities" shall mean any capital stock of ABGENIX, whether
authorized or not, and any rights, options, or warrants to purchase said capital
stock, and securities of any type whatsoever that are, or may become,
convertible into said capital stock; provided that "New Securities" does not
include (i) convertible securities issued by ABGENIX in the first private
financing concluded within one year after the date of this Agreement; (ii)
securities offered pursuant to a registration
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statement filed under the Securities Act; (iii) securities issued pursuant to
the acquisition of another corporation by ABGENIX by merger, purchase of
substantially all of the assets, or other reorganization, if approved by
ABGENIX's Board of Directors; (iv) shares issued or issuable to employees
pursuant to a plan or arrangement approved by ABGENIX's Board of Directors
(except to the extent that such shares would cause an adjustment to the
conversion rate of any of ABGENIX's convertible securities); (v) shares issued
without consideration pursuant to a stock dividend, stock split, or similar
transaction; and (vi) warrants, and shares issuable upon exercise of such
warrants, issued in connection with equipment leasing or facility financing
transactions approved by ABGENIX's Board of Directors.
(c) In the event ABGENIX proposes to undertake an issuance of New
Securities, it shall give CG written notice (the "Notice") of its intention,
describing the type of New Securities, the price, the terms upon which ABGENIX
proposes to issue the same the number of shares which CG is entitled to
purchase, and a statement that CG shall have 20 days to respond to such Notice.
CG shall have 20 days from the date of receipt of the Notice to agree to
purchase any or all of its Pro Rata Share of the New Securities for the price
and upon the terms specified in the Notice by giving written notice to ABGENIX
and stating therein the quantity of New Securities to be purchased and
forwarding payment for such New Securities to the Company if immediate payment
is required by such terms.
(d) In the event that CG fails to exercise in full the right of first
refusal within said 20 day period, ABGENIX shall
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have 90 days thereafter to sell or enter into an agreement (pursuant to which
the sale of New Securities covered thereby shall, be closed, if at all, within
60 days from date of said agreement) to sell the New Securities respecting which
CG's rights were not exercised, at a price and upon general terms no more
favorable to the purchaser thereof than specified in the Notice. In the event
ABGENIX has not sold the New Securities within said 90 day period (or sold and
issued New Securities in accordance with the foregoing within 60 days from the
date of said agreement), ABGENIX shall not thereafter issue or sell any New
Securities without first offering such securities to CG in the manner provided
above.
(e) The right of first refusal granted under this Section 8.4 shall
expire upon:
(i) The effective date of a Registration Statement filed by
ABGENIX in connection with a bona fide firm commitment underwritten public
offering of ABGENIX's Common Stock; or
(ii) The registration of ABGENIX's Common Stock under the 1934
Act.
(f) The right of first refusal granted under this Section 8.3 is
assignable by CG to any transferee of a minimum of 250,000 shares of Common
Stock (including any shares of Common Stock into which shares of convertible
securities then held by it are convertible).
8.5 Notwithstanding any other provisions of this Agreement, neither
party shall be required to take any action hereunder if such action would
constitute a breach of any
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contract to which it is a party, including without limitation the MRLOA.
9. GenPharm Litigation.
ABGENIX agrees to cooperate with CG in connection with the pending
litigation between CG and GenPharm International, Inc., styled as Cell Genesys,
Inc. v. GenPharm International, Inc. and Related Cross-Action (Santa Xxxxx
Superior Court Case No. CV 738041) and GenPharm International, Inc. v. Japan
Tobacco, Inc., et al. (N. Dist. California Federal District Court Case No. C
96-0487 CW) (collectively the "GenPharm Litigation"). Without limiting the
foregoing, ABGENIX shall (a) identify, designate and make ABGENIX employees and
consultants available to serve as witnesses to testify on behalf of CG for
corporate depositions; (b) assist litigation counsel to comply with CG's
discovery obligations, including, without limitation, responding to written
discovery requests; and (c) perform such other ministerial and administrative
functions that may be necessary and appropriate to ensure that the GenPharm
Litigation is prosecuted and/or defended as efficiently as possible to obtain
results most favorable to CG under the circumstances. All out-of-pocket expenses
(i.e., expenses paid to third parties, other than compensation paid to ABGENIX
employees) incurred by ABGENIX in the performance of the foregoing obligations
shall be paid or reimbursed by CG and CG shall be solely responsible for the
payment of any settlement, judgment and costs incurred in the GenPharm
litigation.
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10. Miscellaneous.
10.1 Entire Agreement. This Agreement, together with the Transaction
Agreements, constitutes the entire understanding of the parties with respect to
the matters provided for herein and supersedes any previous agreements and
understanding between the parties with respect to the subject matter hereof and
thereof. No amendment, modification or alteration of the terms or provisions of
this Agreement shall be binding unless the same shall be in writing and duly
executed by the party against whom such amendment, modification or alteration is
asserted.
10.2 Assignment. Except as set forth in Sections 6 and 8.3(d), neither
party shall delegate duties of performance or in whole or in part, rights or
obligations under this without the prior written consent of the other party,
except either party may assign this Agreement without such consent to an entity
that acquires all or substantially all of the assets or business of such party,
whether by sale, merger or otherwise. The terms and conditions of this Agreement
shall be binding on and inure to benefit of the permitted successors and Assigns
of the parties.
10.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
10.4 Headings. The headings of this Agreement are included for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
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32
10.5 Modifications and Waivers. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party which is entitled to
the benefits thereof. No waiver of any of the provisions of this Agreement shall
be deemed to or shall constitute a waiver of any other provisions hereof
(whether or not similar) or of the same provision in respect of a subsequent
event.
10.6 Notices. All notices required or permitted to be given under this
Agreement shall be in writing and shall be sent by facsimile transmission or
mailed by registered or certified mail addressed to the party to whom such
notice is required or permitted to be given. All notices shall be deemed to have
been given when transmitted if given by facsimile and confirmation of receipt is
received or, if mailed, forty-eight hours after mailed as evidenced by the
postmark at the point of mailing.
All notices to CG shall be addressed as follows:
Cell Genesys, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
All notices to ABGENIX shall be addressed as follows:
Abgenix, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
Either party may, by written notice to the other, designate a new address or
number to which notices to the party giving the notice shall thereafter be
mailed or sent.
10.7 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of
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California applicable to agreements made and to be performed in such
jurisdiction.
10.8 Further Action. At any time or from time to time after the date
hereof, either party shall, at the request of the other party and at such other
party's expense, execute and deliver any further instruments or documents and
take all such further action as such party reasonably may request in order to
consummate and make effective the transaction contemplated by this Agreement.
10.9 Severability. If any provisions hereof shall be held by any court
of competent jurisdiction to be illegal, void or unenforceable, such provision
shall be thereafter amended by the parties hereto such that it is thereafter
legal, valid and enforceable and gives effect to the intention of the parties,
but in any event the illegality or unenforceability of such provision shall have
no effect upon and shall not impair the enforceability of any other provision of
this Agreement.
10.10 No Third-Party Beneficiaries. The provisions of this Agreement
are for the sole benefit of the parties of this Agreement and are not for the
benefit of any third party.
10.11 Disputes. If disagreement should arise between the parties with
respect to any provision of this Agreement or the Transaction Agreements, the
parties will use reasonable efforts to resolve such dispute through mediation.
If the parties are unable to do so within 60 days, either party may submit the
matter to binding arbitration before a panel of three arbitrators in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
Any such arbitration
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shall be completed within 180 days following the date a party submits such
matter to arbitration. No punitive damages may be awarded in any such
arbitration, and enforcement of any award may be made by any court having
jurisdiction over the parties.
IN WITNESS WHEREOF, the undersigned have caused this Stock Purchase
and Transfer Agreement to be executed as of the date first above written.
CELL GENESYS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
ABGENIX, Inc.
By: /s/ R. Xxxxx Xxxxx
-------------------------------------
R. Xxxxx Xxxxx
President and Chief Executive Officer
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Exhibit List
EXHIBIT A-1 ABGENIX Biological Materials
EXHIBIT A-2 CG Biological Materials
EXHIBIT A-3 Joint Biological Materials
EXHIBIT B Patents and Patent Applications
EXHIBIT C Services Agreement
EXHIBIT D Immunization Services Agreement
EXHIBIT E Governance Agreement
EXHIBIT F Tax Sharing Agreement
EXHIBIT G Gene Therapy Rights Agreement
EXHIBIT H Voting Agreement
EXHIBIT I Convertible Promissory Note
EXHIBIT J Patent Assignment Agreement
EXHIBIT K Certificate of Designations
EXHIBIT L Certificate of Incorporation
EXHIBIT M Bylaws
EXHIBIT N Employee Notes
EXHIBIT 0 Equipment, Furniture and Fixtures
EXHIBIT P Antibody Business Agreements
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Exhibit A-1
ABGENIX Biological 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.
37
Exhibit A-1
ABGENIX Biological Materials
(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.
38
Exhibit A-1
ABGENIX Biological Materials
(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.
39
Exhibit A-1
ABGENIX Biological Materials
(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.
40
Exhibit A-2
CG Biological 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.
41
Exhibit A-3
Joint Biological 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.
42
Exhibit B
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.
43
Exhibit B
(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.
44
EXHIBIT C
SERVICES AGREEMENT
This Services Agreement is made as of the 15th day of July, 1996, between
CELL GENESYS, INC. ("CG") and ABGENIX, INC. ("ABGENIX").
R E C I T A L S
The parties desire that CG provide certain services to ABGENIX, and CG is
willing to provide such services on the terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Administrative Services.
During the term of this Agreement, CG shall provide to ABGENIX the
administrative services ("Administrative Services") and the facilities set
forth in Schedule 1 attached hereto. CG shall be required to provide the
Administrative Services only to the extent and only at the locations such
services are currently being provided by CG for its Antibody Business, as such
term is defined in the Stock Purchase and Transfer Agreement between ABGENIX
and CG effective as of July 15, 1996 (the "Business") immediately prior to the
date of formation of ABGENIX and transfer to it by CG of the Business.
2. Development Services.
During the term of this Agreement, CG shall provide to ABGENIX the
development services set forth in Schedule 1 attached hereto ("Development
Services"). The Development Services shall
45
be available to ABGENIX only for purposes of conducting the Business and shall
not be used by ABGENIX for any other purpose.
3. Performance of Services.
A. CG shall not be obligated to acquire new or additional assets, or
hire new or additional employees, to perform the Administrative Services and
Development Services (collectively, the "Services"). In addition, CG may
contract with one or more third parties for the performance of all or any part
of the Services provided (i) the costs to ABGENIX for the services to be
provided by the third party do not exceed the amounts that would have been
charged by CG, (ii) the level of service provided by the third party is at
least substantially equivalent to that provided by CG hereunder, and (iii) such
third party is reasonably acceptable to ABGENIX. It is currently contemplated
that the Services will generally continue to be provided by the entity (whether
such entity be CG or a third party) that is providing such Services as of the
date hereof. ABGENIX agrees that all third parties currently providing any
Services are acceptable third parties to provide such Services.
B. Each party shall provide to the other party on a timely basis any and
all information which is necessary for CG to provide the Services as set forth
herein. Neither party shall have any right to obtain any confidential or
proprietary information of the other party as the result of the Services
provided hereunder, and any such information so obtained shall be treated in
accordance with Section 9.
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4. Performance and Limitation of Services.
A. CG shall provide the Services at a comparable level to that
provided for its internal operations. In addition, CG shall be required to
provide the Services only as reasonably appropriate to conduct the Business and
shall not be required to provide a level of service which is materially higher
than that currently provided by CG for its internal operations or as
contemplated by CG's operating budget.
B. CG shall not be required to perform any Administrative Services,
to the extent such services would result in the breach of any software license
or other applicable contract by which it is bound. If CG believes it is unable
to provide any Services pursuant to the foregoing, CG shall promptly notify
ABGENIX. If requested by ABGENIX, CG shall use reasonable efforts to obtain the
rights necessary to provide such Services, including obtaining any appropriate
consents from third parties. ABGENIX shall be responsible for all additional
costs and expenses incurred by CG in order to allow CG to provide such
Services. If any Services are not provided by CG pursuant to this Section 4(B),
ABGENIX shall not be responsible for the price (as set forth in Section 5)
applicable to such Services which are not provided.
C. CG shall not be required to provide any Services to the extent
the performance of such Services becomes impracticable as a result of a cause
or causes outside CG's reasonable control or to the extent the performance of
such Services would require it to violate any applicable laws, rules or
regulations.
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47
D. ABGENIX shall have continued access to the premises where the
Business is presently being conducted, and CG shall continue to provide
administration and utility support for the premises (i.e., telephone,
utilities, housekeeping, etc.) as set forth on Schedule 1. Nothing herein is
intended to give ABGENIX exclusive access to any of the premises or any part of
the premises, except as expressly provided in Schedule 1.
E. CG MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND CG
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES TO BE PROVIDED HEREUNDER.
5. Price.
A. ABGENIX shall pay to CG, as the price for the Services performed
and facilities provided by CG pursuant to this Agreement, the amounts set forth
in Schedule 1 hereto. Schedule 1 shall be subject to adjustment semi-annually
by mutual agreement, no later than September 30 for the six months beginning
January 1 and no later than March 31 for the six months beginning July 1.
B. CG shall submit to ABGENIX a quarterly invoice on the first day
of each calendar quarter for reimbursement for the Services to be performed by
CG during such quarter under this Agreement, in accordance with Schedule 1, as
it may be amended from time to time. The invoice shall be payable on the last
day of the calendar quarter. As long as ABGENIX is eligible to draw on the
Convertible Promissory Note in the maximum principal amount of $4,000,000 dated
July 15, 1996 held by CG (the "Note"), ABGENIX shall be deemed to have drawn
the amount of the invoice
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48
as of the last day of the calendar quarter. At such time as ABGENIX is no longer
eligible to draw on the Note, invoices shall be payable in cash.
C. In addition, CG shall submit to ABGENIX a monthly invoice on the
fifth business day of each month for reimbursement for any payments made to
third parties on behalf of ABGENIX in the prior month. The invoice shall be
payable upon receipt in cash.
D. An interest charge of 1% per month shall be payable for all
amounts payable to CG under Section 5.C more than 10 days overdue. In the
event that ABGENIX, in good faith, questions any invoiced item, such amount
shall be payable immediately after the satisfactory resolution of such item.
6. Term.
A. Unless terminated earlier as provided in this Section 6, this
Agreement shall terminate on the later of December 31, 1996 or the date on
which ABGENIX and CG no longer share facilities (the "Termination Date"). The
Termination Date shall be automatically extended for successive six-month
periods unless written notice of termination is given by the terminating party
to the other party at least ninety days in advance of the next Termination Date.
B. This Agreement may be terminated upon thirty days' notice by the
mutual consent of the parties.
C. Either party may terminate this Agreement if the other party is
in material default under this Agreement and fails to correct such default
within thirty days after receiving written notice of such default.
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7. Indemnification.
A. ABGENIX shall indemnify and hold harmless CG, its affiliates,
and their officers, directors, employees, and agents from and against all
claims, liabilities, obligations, suits, causes of action, or expenses
(including reasonable attorneys fees) (collectively "Claims") claimed to have
resulted, directly or indirectly, from or in connection with the performance of
the Services or in the provision of facilities; provided, however, that ABGENIX
shall not be required to indemnify or hold harmless CG to the extent the Claims
are caused by the negligence or willful misconduct of CG.
B. CG shall indemnify and hold harmless ABGENIX, its affiliates,
and their officers, directors, employees, and agents from and against all
Claims claimed to have resulted, directly or indirectly, from or in connection
with the performance of the Services or in the provision of facilities;
provided, however, that CG shall not be required to indemnify or hold harmless
ABGENIX to the extent the Claims are caused by the negligence or willful
misconduct of ABGENIX.
C. An indemnitee shall provide written notice to the
indemnifying party of any Claims with respect to which it seeks
indemnification, and the indemnifying party shall assume the defense of such
Claims with counsel reasonably satisfactory to the indemnitee. If such defense
is assumed by the indemnifying party with counsel so selected, the
indemnifying party will not be subject to any liability for any settlement of
such claim made by an indemnified party without the indemnifying party's
consent (such consent not to be unreasonably withheld or delayed). No
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50
indemnified party will be subject to any liability for any settlement of such
Claims made by the indemnifying party without such party's consent (such
consent not to be unreasonably withheld or delayed), and such settlement shall
include an unconditional release of all indemnitees from all liability on such
claims. If an indemnified party desires to retain separate counsel, such
indemnified party shall have the right to do so, but the indemnifying party
will not be obligated to pay the fees and expenses of such separate counsel.
The parties hereto agree to cooperate fully with each other in connection with
the defense, negotiation or settlement of any legal proceeding, claim or demand
and to engage in no actin that would result in or increase liability on the
part of another party.
D. Claims reimbursable hereunder shall not include any losses or
expenses covered by the indemnitee's insurance.
E. The provisions of this Section 7 shall survive termination of the
Agreement.
8. Confidentiality
A. Except as expressly provided herein, ABGENIX and CG agree that,
for the term of this Agreement and for five eyars 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,
know-how), except to the extent that it can be established by the receiving
party by competent proof that such information:
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51
(i) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure; provided, however,
that this exception shall not apply to information assigned or licensed
exclusively by the receiving party to the other party pursuant to the Stock
Purchase and Transfer Agreement between ABGENIX and CG effective as of July 15,
1996;
(ii) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the receiving party;
(iii) 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;
(iv) was subsequently lawfully disclosed to the receiving party by
a person other than the disclosing party; or
(v) was developed by the receiving party without reference to any
information or materials disclosed by the disclosing party.
B. Notwithstanding the foregoing, a party hereto 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 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, provided that if a party is
required to make any such disclosure of another party's secret
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or confidential information, other than pursuant to a confidentiality agreement,
it will give reasonable advance notice to the other party 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).
9. Miscellaneous.
A. Notices. All notices required or permitted to be given under this
Agreement shall be in writing and shall be sent by facsimile transmission or
mailed by registered or certified mail addressed to the party to whom such
notice is required or permitted to be given. All notices shall be deemed to have
been given when transmitted if given by facsimile and confirmation of receipt is
received or, if mailed, forty-eight hours after mailed as evidenced by the
postmark at the point of mailing.
All notices to CG shall be addressed as follows:
Cell Genesys, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
All notices to ABGENIX shall be addressed as follows:
Abgenix, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
Either party may, by written notice to the other, designate a new address or
number to which notices to the party giving the notice shall thereafter be
mailed or sent.
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53
B. Force Majeure. CG shall not be liable for any delay or failure
of performance to the extent such delay or failure is caused by circumstances
beyond its reasonable control and that by the exercise of due diligence it is
unable to prevent, provided that CG uses its reasonable best efforts to
overcome the same.
C. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOST PROFITS, ARISING FROM OR RELATING TO ANY
BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES. NOTHING IN
THIS SECTION 9(C) IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS
OR OBLIGATION OF EITHER PARTY.
D. Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to the matters provided for herein
and supersedes any previous agreements and understanding between the parties
with respect to the subject matter hereof and thereof. No amendment,
modification or alteration of the terms or provisions of this Agreement shall
be binding unless the same shall be in writing and duly executed by the party
against whom such amendment, modification or alteration is asserted.
E. Modifications and Waivers. Any of the terms or conditions of
this Agreement may be waived in writing at any time by the party which is
entitled to the benefits thereof. No waiver of any of the provisions of this
Agreement shall be deemed to or shall constitute a waiver of any other
provisions hereof
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(whether or not similar) or of the same provision in respect of a subsequent
event.
F. Disclaimer of Agency. This Agreement shall not constitute either party
the legal representative or agent of the other, nor shall either party have the
right or authority to assume, create, or incur any third-party liability or
obligation of any kind, express or implied, against or in the name of or on
behalf of the other party except as expressly set forth in this Agreement. The
relationship of CG and ABGENIX shall be solely that of contracting parties and
no partnership, joint venture or other arrangement of any nature shall be
deemed to be created hereby.
G. Severability. If any provisions hereof shall be held by any court of
competent jurisdiction to be illegal, void or unenforceable, such provision
shall be thereafter amended by the parties hereto such that it is thereafter
legal, valid and enforceable and gives effect to the intention of the parties,
but in any event the illegality or unenforceability of such provision shall
have no effect upon and shall not impair the enforceability of any other
provision of this Agreement.
H. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of California applicable to agreements
made and to be performed in such jurisdiction.
I. Assignment. Except as provided in Section 4, neither CG nor ABGENIX
shall delegate duties of performance or assign, in whole or in part, rights
or obligations under this Agreement without the prior written consent of the
other party,
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except that either may assign this Agreement without such consent to an entity
that acquires all or substantially all of the assets or business of such party,
whether by sale, merger or otherwise. 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.
J. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
K. Headings. The headings of this Agreement are included for
convenience only and shall not be deemed to constitute part of this Agreement
or to affect the construction hereof.
This Services Agreement is executed by the parties as of the date indicated
above.
CELL GENESYS, INC. ABGENIX, INC.
/s/ XXXXXXX X. XXXXXXX /s/ R. XXXXX XXXXX
---------------------- -------------------
Xxxxxxx X. Xxxxxxx X. Xxxxx Xxxxx
President and Chief President and Chief
Executive Officer Executive Officer
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SCHEDULE 1
Administrative Services
Departments and functions that will perform services for the Company and the
related Full Time Equivalent headcount required per calendar quarter.
DEPARTMENT/FUNCTIONS 3Q96 4Q96
Accounting
Accounts payable
Corp. Comm.
Environment Health & Safety
Facilities operations, maintenance,
Financial Planning & Reporting
Human Resources
Lab. Operations
MIS & Library
Office Operations
Payroll
Purchasing
Stock Administration
Treasury & Cash Management
Warehouse, shipping and receiving
TOTAL ADMINISTRATIVE FTE 14.1 14.1
Price/FTE/Yr. $125,000 $125,000
Price/Qtr. $31,250 $31,250
TOTAL COST PER QTR. $440,625 $440,625
Facilities
The facility space at 000 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, XX will be provided to
the Company for $549,600 rent per quarter.
The Company and CG will share some additional facility spaces. During this
period the occupying party will compensate the other party at the rate of
$41,000 per year per headcount.
Development Services
Full Time Equivalent headcount required per calendar quarter for Development
services for IL8 product for the Company.
DEVELOPMENT 3Q96 4Q96
Development & Project 1.5
management
Price/FTE/Yr. $162,100 $162,100
Price/Qtr. $40,525 $40,525
TOTAL COST PER QTR. $60,788 $0
57
EXHIBIT D
IMMUNIZATION SERVICES AGREEMENT
--------------------------------
This Immunization Services Agreement (the "Agreement") is made as of the
15th day of July 1996 (the "Effective Date") between ABGENIX, INC. ("ABGENIX")
and CELL GENESYS, INC. ("CG").
RECITALS
A. Pursuant to the Stock Purchase and Transfer Agreement between the
parties dated as of July 15, 1996 (the "Stock Purchase and Transfer Agreement"),
CG has assigned to ABGENIX certain assets related to the Antibody Business (as
defined therein), including the Master Research License and Option Agreement
among CG, Japan Tobacco Inc. ("JTI") and Xenotech, L.P. ("XT") dated as of June
28, 1996 (the "Master Research License and Option Agreement") and Articles 2 and
3 of the Universal Receptor License Option Agreement between CG and XT dated as
of June 28, 1996 (the "Universal Receptor License Option Agreement").
B. Pursuant to the Master Research License and option, Agreement and
Articles 2 and 3 of the Universal Receptor License Option Agreement, ABGENIX has
certain rights to conduct research using Mice as defined in the Master Research
License and option Agreement).
C. The parties desire that ABGENIX provide certain Immunization Services
(as defined in Schedule 1 hereto) to CG using the Mice, and ABGENIX is willing
to provide such services on the terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
58
1. Services.
During the term of this Agreement, ABGENIX shall provide to CG
the Immunization Services as requested by CG.
2. Performance of Services.
A. In order to enable ABGENIX to provide the Immunization
Services, CG agrees to guarantee funding of one full-time equivalent person
until December 31, 1996. The schedule for the Immunization Services to be
provided by ABGENIX during such period will be agreed to by the parties within
15 days of the Effective Date and attached hereto as Schedule 2. No later than
September 30, 1996, and each September 30 thereafter, ABGENIX and CG shall
mutually agree to the number of full-time equivalent persons, if any, for which
CG is to guarantee funding for the next calendar year, as well as on a schedule
for Immunization Services to be provided by ABGENIX for such calendar year,
which schedule shall be attached hereto as the amended Schedule 2. From one year
to the next, CG shall have the right to increase or decrease the number of
full-time equivalent persons for which it is guaranteeing funding by one person,
including without limitation from one to zero or zero to one. Notwithstanding
the foregoing, the number of full-time equivalents for which CG is guaranteeing
funding may be increased or decreased at any time by the mutual agreement of the
parties.
B. At the time of setting the schedule of Immunization Services
for the next calendar year, ABGENIX agrees to give at least equal priority to
the Immunization Services provided to CG as to its own priorities, ABGENIX
agrees that, to the extent consistent with the established schedule of
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Immunization Services, it shall dedicate (at no further charge above the
established annual rate for each full-time equivalent) up to 135% of the
full-time equivalents funded by CG to providing Immunization Services to CG. CG
agrees that, to the extent that any CG funded full-time equivalents are not
needed to provide the scheduled Immunization Services, ABGENIX shall be free to
use them on other programs.
C. Each party shall provide to the other on a timely basis any and all
information and materials which are necessary for ABGENIX to provide the
Immunization Services as set forth herein. Neither party shall have any right to
obtain any confidential or proprietary information of the other party as the
result of the Immunization Services provided hereunder, and any such information
so obtained shall be treated in accordance with Section 7.
3. Performance and Limitation of Services.
A. ABGENIX shall not be required to perform any Immunization
Services to the extent such services would result in the breach of any
applicable contract-by which ABGENIX is bound. However, ABGENIX shall not enter
into any contract which would restrict its right to provide Immunization
Services to CG. If ABGENIX nonetheless believes that it is unable to provide any
Immunization Services to CG because of the foregoing, it shall promptly notify
CG.
B. ABGENIX shall not be required to provide any Immunization
Services to the extent the performance of such Immunization Services becomes
impracticable as a result of a cause or causes outside its reasonable control or
to the extent
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the performance of such Immunization Services would require it to violate any
applicable laws, rules or regulations.
C. ABGENIX MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AND ABGENIX SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
IMMUNIZATION SERVICES TO BE PROVIDED BY IT HEREUNDER.
D. ABGENIX agrees to maintain a colony of Phase II Mice (as
defined below) for as long as the maintenance of such colony does not prove
unduly burdensome to ABGENIX. In the event that ABGENIX, in its reasonable
discretion, determines that the continued maintenance of its colony of Phase II
Mice has become unduly burdensome, it shall give reasonable, but not less than
90 days, notice to CG thereof before taking any action to discontinue
maintenance of the colony. Phase II Mice, as used herein, means either the Phase
IIa Mice, Phase IIb Mice or Phase IIc Mice, as such terms are defined in the
Master Research License and Option Agreement.
4. Price.
A. CG shall reimburse ABGENIX for the Immunization Services at
the annual rate of $219,000 per full-time equivalent person for 1996, which rate
shall be subject to annual adjustment as set forth below. In addition, CG shall
reimburse ABGENIX for all direct third-party costs incurred by the Company in
connection with providing Immunization Serviced to CG.
B. The reimbursement rate to be paid to the Company for
Immunization Services hereunder shall be reviewed ninety days prior to the end
of each calendar year by the Company and CG. It
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is understood that the reimbursement rate is intended to approximate actual
anticipated research costs and that the purpose of such annual review is to
adjust such reimbursement rate in the event that it differs materially from the
actual costs incurred. If the reimbursement rate is adjusted pursuant to such a
review, the new reimbursement rate shall apply prospectively from the first day
of the calendar year after which such review was begun. Any readjustment of the
reimbursement rate will be determined on the basis of changes in any of the same
factors utilized in determining the 1996 reimbursement rate.
C. ABGENIX shall submit to CG a quarterly invoice on the first
day of each calendar quarter for reimbursement for the Immunization Services to
be performed by ABGENIX as set forth on the Schedule 2 then in effect. The
invoice shall be payable on the last day of the calendar quarter in cash.
D. In addition, ABGENIX shall submit to CG a monthly invoice on
the fifth business day of each month for reimbursement for any invoices for
outside services or expenses incurred on behalf of CG in providing the
Immunization Services in the prior month. The invoice shall be payable upon
receipt in cash (unless payments are being made directly to third parties by CG
on behalf of ABGENIX pursuant to the Services Agreement between ABGENIX and CG
dated as of July 15, 1996).
E. An interest charge of 1% per month shall be payable for all
amounts payable to ABGENIX hereunder more than 10 days overdue. In the event
that CG, in good faith, questions any invoiced item, such amount shall be
payable immediately after the satisfactory resolution of such item.
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5. Term.
A. Unless terminated earlier as provided in this Section, this
Agreement shall have an initial term of twenty years.
B. At any time after June 30, 1997, CG may terminate this
Agreement on sixty-days' notice to the Company; provided, that CG shall be
required to continue to fund any full-time equivalent for which it has
guaranteed funding for the remainder of such year.
C. This Agreement may be terminated upon thirty-days, notice by
the mutual consent of the parties.
D. Either party may terminate this Agreement if the other party
is in material default under this Agreement and fails to correct such default
within thirty days after receiving written notice of such default.
6. Indemnification.
A. ABGENIX shall indemnify and hold harmless CG, its affiliates,
and their officers, directors, employees, and agents from and against all
claims, liabilities, obligations, suits, causes of action, or expenses
(including reasonable attorneys fees) (collectively "Claims") claimed to have
resulted, directly or indirectly, from or in connection with the performance of
the Immunization Services; provided, however, that ABGENIX shall not be required
to indemnify or hold harmless CG to the extent the claims are caused by the
negligence or willful misconduct of CG.
B. CG shall indemnify and hold harmless ABGENIX, its affiliates,
and their officers, directors, employees, and agents from and against all Claims
claimed to have resulted, directly or
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indirectly, from or in connection with the performance of the Immunization
Services; provided, however, that CG shall not be required to indemnify or hold
harmless ABGENIX to the extent the Claims are caused by the negligence or
willful misconduct of ABGENIX.
C. An indemnitee shall provide written notice to the indemnifying
party of any Claims with respect to which it seeks indemnification, and the
indemnifying party shall assume the defense of such Claims with counsel
reasonably satisfactory to the indemnitee. If such defense is assumed by the
indemnifying party with counsel so selected, the indemnifying party will not be
subject to any liability for any settlement of such claim made by an indemnified
party without the indemnifying party's consent (such consent not to be
unreasonably withheld or delayed). No indemnified party will be subject to any
liability for any settlement of such Claims made by the indemnifying party
without such party's consent (such consent not to be unreasonably withheld or
delayed), and such settlement shall include an unconditional release of all
indemnitees from all liability on such claims. If an indemnified party desires
to retain separate counsel, such indemnified party shall have the right to do
so, but the indemnifying party will not be obligated to pay the fees and
expenses of such separate counsel. The parties hereto agree to cooperate fully
with each other in connection with the defense, negotiation or settlement of any
legal proceeding, claim or demand and to engage in no action that would result
in or increase liability on the part of another party.
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D. Claims reimbursable hereunder shall not include any losses or
expenses covered by the indemnitee's insurance.
E. The provisions of this Section 6 shall survive termination of
the Agreement.
7. Confidentiality.
A. Except as expressly provided herein, ABGENIX and CG 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, know-how), except to the extent that it can be established by the
receiving party by competent proof that such information:
(i) was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure; provided, however,
that this exception shall not apply to information assigned or licensed
exclusively by the receiving party to the other party pursuant to the Stock
Purchase and Transfer Agreement between ABGENIX and CG effective as of July 15,
1996;
(ii) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the receiving party;
(iii) 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;
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(iv) was subsequently lawfully disclosed to the receiving party
by a person other than the disclosing party; or
(v) was developed by the receiving party without reference to any
information or materials disclosed by the disclosing party.
B. Notwithstanding the foregoing, a party hereto 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 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, provided that if a party is required to make any
such disclosure of another 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, 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).
C. ABGENIX 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 resulting from or arising out of its provision of
Immunization Services hereunder.
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8. Miscellaneous.
A. Notices. All notices required or permitted to be given under
this Agreement shall be in writing and shall be sent by facsimile transmission
or mailed by registered or certified mail addressed to the party to whom such
notice is required or permitted to be given. All notices shall be deemed to have
been given when transmitted if given by facsimile and confirmation of receipt is
received or, if mailed, forty-eight hours after mailed as evidenced by the
postmark at the point of mailing.
All notices to CG shall be addressed as follows:
Cell Genesys, Inc.
000 Xxxxxxxx Xxxxx Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
All notices to ABGENIX shall be addressed as follows:
Abgenix, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
Either party may, by written notice to the other, designate a new address or
number to which notices to the party giving the notice shall thereafter be
mailed or sent.
B. Force Majeure. ABGENIX shall not be liable for any delay or
failure of performance to the extent such delay or failure is caused by
circumstances beyond its reasonable control and that by the exercise of due
diligence it is unable to prevent, provided that ABGENIX uses its reasonable
best efforts to overcome the same.
C. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR INDIRECT, CONSEQUENTIAL,
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INCIDENTAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS,
ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY
NOTICE OF SUCH DAMAGES. NOTHING IN THIS SECTION 8(C) IS INTENDED TO LIMIT OR
RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY.
D. Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to the matters provided for herein and
supersedes any previous agreements and understanding between the parties with
respect to the subject matter hereof and thereof. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the party against whom such
amendment, modification or alteration is asserted.
E. Modifications and Waivers. Any of the terms or conditions of
this Agreement may be waived in writing at any time by the party which is
entitled to the benefits thereof. No waiver of any of the provisions of this
Agreement shall be deemed to or shall constitute a waiver of any other
provisions hereof (whether or not similar) or of the same provision in respect
of a subsequent event.
F. Disclaimer of Agency. This Agreement shall not constitute
either party the legal representative or agent of the other, nor shall either
party have the right or authority to assume, create, or incur any third-party
liability or obligation of any kind, express or implied, against or in the name
of or on behalf of the other party except as expressly set forth in this
Agreement. The relationship of CG and ABGENIX shall be solely
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68
that of contracting parties and no partnership, joint venture or other
arrangement of any nature shall be deemed to be created hereby.
G. Severability. If any provisions hereof shall be held by any
court of competent jurisdiction to be illegal, void or unenforceable, such
provision shall be thereafter amended by the parties hereto such that it is
thereafter legal, valid and enforceable and gives effect to the intention of the
parties, but in any event the illegality or unenforceability of such provision
shall have no effect upon and shall not impair the enforceability of any other
provision of this Agreement.
H. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of California applicable to
agreements made and to be performed in such jurisdiction.
I. Assignment. Except as provided in Section 4, neither CG nor
ABGENIX shall delegate duties of performance or assign, in whole or in part,
rights or obligations under this Agreement without the prior written consent of
the other party, except that either party may assign this Agreement without such
consent to an entity that acquires all or substantially all of the assets or
business of such party, whether by sale, merger or otherwise. 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.
J. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be
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69
deemed to be an original and all of which shall constitute the same instrument.
K. Headings. The headings of this Agreement are included for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
This Immunization Services Agreement is executed by the parties as of
the date indicated above.
ABGENIX, INC. CELL GENESYS, INC.
/s/ R. XXXXX XXXXX /s/ XXXXXXX X. XXXXXXX
------------------------------- -------------------------------
R. Xxxxx Xxxxx Xxxxxxx X. Xxxxxxx
President and Chief President and Chief
Executive officer Executive Officer
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SCHEDULE 1
IMMUNIZATION SERVICES
---------------------
Procedure Responsibility
--------- --------------
1. Provide antigen (unformulated) CG
2. Provide screening assay CG
3. Formulate antigen/adjuvant ABGENIX
4. Immunize animals ABGENIX
5. Boost immunizations ABGENIX
6. Harvest and prepare spleens ABGENIX
7. Do cell fusions and HAT selections ABGENIX
8. Primary screening ABGENIX; CG
as needed
9. Clone and expand hybridomas, ABGENIX
cyropreserve
10. Sub-clone and secondary screen ABGENIX; CG
as needed
11. Transfer hybridoma to CG ABGENIX
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Exhibit E
Governance Agreement
[OMITTED -- SEE EXHIBIT 10.15]
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Exhibit F
Tax Sharing Agreement
[OMITTED -- SEE EXHIBIT 10.16]
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Exhibit G
Gene Therapy Rights Agreement
[OMITTED -- SEE EXHIBIT 10.17]
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EXHIBIT H
VOTING AGREEMENT
----------------
This Voting Agreement (the "Agreement") is made as of the 15th day of
July 1996 (the "Effective Date") between ABGENIX, INC. ("ABGENIX") and CELL
GENESYS, INC. ("CG").
RECITALS
A. Pursuant to the Stock Purchase and Transfer Agreement between the
parties dated as of July 15, 1996 (the "Stock Purchase and Transfer Agreement"),
CG has assigned to ABGENIX certain assets related to the Antibody Business (as
defined therein), including the Master Research License and Option Agreement
among CG, Japan Tobacco Inc. and Xenotech, L.P.("XT") dated as of June 28, 1996
(the "Master Research License and Option Agreement"), and has also granted
ABGENIX a worldwide, royalty-free license to practice any Know-How owned or
controlled by CG that relates to the Antibody Business (as such terms are
defined in the Stock Purchase and Transfer Agreement).
B. Pursuant to the Master Research License and Option Agreement, ABGENIX
has certain rights to obtain Product Licenses to Antigens (as such terms are
defined therein).
C. Pursuant to the Gene Therapy Rights Agreement between ABGENIX and CG
made as of July 15, 1996, ABGENIX has granted to CG certain rights to Antigens
for applications in Gene Therapy (as defined below).
D. ABGENIX and CG wish to establish certain voting and other procedures
relating to proposals to license Antigens for applications in Gene Therapy.
NOW, THEREFORE, the parties agree as follows:
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1. DEFINITIONS
1.1 "Antigen" shall have the meaning set forth in the Master Research
License and Option Agreement.
1.2 "Gene Therapy" shall mean the transfer or use of DNA, RNA, or
hybrids thereof to treat or prevent disease by means of ex vivo or in vivo gene
delivery, including without limitation the use of both viral and non-viral gene
transfer systems.
1.3 "Licensed Technology" shall have the meaning set forth in the Master
Research License and option Agreement.
1.4 "Master Research License and Option Agreement" shall mean the Master
Research License and Option Agreement among CG, Japan Tobacco Inc. and XT dated
as of June 28, 1996.
1.5 "XT" shall mean Xenotech, L.P. a California limited partnership.
1.6 "XenoMouse(TM) Technology" shall have the meaning set forth in the
Master Research License and Option Agreement.
2. XT LICENSES TO THIRD PARTIES TO ANTIGENS FOR GENE THERAPY
2.1 Action by XT Board. ABGENIX agrees to instruct the directors
nominated by ABGENIX on the board of Xenotech, Inc., the general partner of XT,
to vote in accordance with the timely directions of CG management on proposal to
have XT license Licensed Technology to a third party for Gene Therapy, whether
the Gene Therapy application is to be licensed as a separate field or as part of
a more general field license.
2.2 ABGENIX Proposal. ABGENIX agrees not to propose to XT the granting
of a license of XenoMouse(TM) Technology, pursuant to Section 7.2 of the Master
Research License and Option Agreement, to any third party for an Antigen for
Gene Therapy purposes,
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other than at the written request of CG, unless such third party has a blocking
patent position with respect to the Antigen.
2.3 Determination of Position of Third Party. In the event that ABGENIX
proposes, pursuant to Section 7.2 of the Master Research License and Option
Agreement, that XT grant a license to a third party that claims proprietary
rights to an Antigen, the parties agree to select a mutually agreed upon
intellectual property attorney with substantial experience in biotechnology
intellectual property matters to determine the extent of the third party's
patent. This determination shall be made in a timely manner. If the third
party's claim is determined by such expert to be blocking the right of any other
party to use the Antigen in Gene Therapy applications, ABGENIX shall be
permitted to propose to XT that a license be granted to such third party.
ABGENIX and CG shall share the cost of such expert.
3. LIMITATION
Notwithstanding any other provisions of this Agreement, ABGENIX shall
not be required to take any action hereunder if such action would constitute a
breach of the Master Research License and Option Agreement.
4. TERM; TERMINATION
4.1 Initial Term. Unless terminated earlier as provided in this, Section
4, this Agreement shall have an initial term of twenty years.
4.2 Termination by Mutual Consent. This Agreement may be terminated upon
thirty days' notice by the mutual consent of the parties.
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4.3 Termination for Material Breach. Either party may terminate this
Agreement if the other party is in material default under this Agreement and
fails to correct such default within thirty days after receiving written notice
of such default.
5. CONFIDENTIALITY.
5.1 Confidential Information. Except as expressly provided herein,
ABGENIX and CG agree that, or 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, know-how), 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; provided, however,
that this exception shall not apply to information assigned or licensed
exclusively by the receiving party to the other party pursuant to the Stock
Purchase and Transfer Agreement between ABGENIX and CG effective as of July 15,
1996;
(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
-4-
78
other than through any act or omission of the receiving party in breach of this
Agreement;
(d) was subsequently lawfully disclosed to the receiving party by
a person other that the disclosing party; or
(e) was developed by the receiving party without reference to any
information or materials disclosed by the disclosing party.
5.2 Disclosure. Notwithstanding the foregoing, a party hereto 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 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, provided that if a party is required to
make any such disclosure of another 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, 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).
6. MISCELLANEOUS.
6.1 Notices. All notices required or permitted to be given under this
Agreement shall be in writing and shall be sent by facsimile transmission or
mailed by registered or certified mail
-5-
79
addressed to the party to whom such notice is required or permitted to be given.
All notices shall be deemed to have been given when transmitted if given by
facsimile and confirmation of receipt is received or, if mailed, forty-eight
hours after mailed as evidenced by the postmark at the point of mailing.
All notices to CG shall be addressed as follows:
Cell Genesys, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
All notices to ABGENIX shall be addressed as follows:
Abgenix, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
Either party may, by written notice to the other, designate a new address or
number to which notices to the party giving the notice shall thereafter be
mailed or sent.
6.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING
BUT NOT LIMITED TO LOST PROFITS, ARISING FROM OR RELATING TO ANY BREACH OF THIS
AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES.
6.3 Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to the matters provided for herein and
supersedes any previous agreements and understanding between the parties with
respect to the subject matter hereof and thereof. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by
-6-
80
the party against whom such amendment, modification or alteration is asserted.
6.4 Modifications and Waivers. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party which is entitled to
the benefits thereof. No waiver of any of the provisions of this Agreement shall
be deemed to or shall constitute a waiver of any other provisions hereof
(whether or not similar) or of the same provision in respect of a subsequent
event.
6.5 Disclaimer of Agency. This Agreement shall not constitute either
party the legal representative or agent of the other, nor shall either party
have the right or authority to assume, create, or incur any third-party
liability or obligation of any kind, express or implied, against or in the name
of or on behalf of the, other party except as expressly set forth in this
Agreement. The relationship of CG and ABGENIX shall be solely that of
contracting parties and no partnership, joint venture or other arrangement of
any nature shall be deemed to be created hereby.
6.6 Severability. If any provisions hereof shall be held by any court of
competent jurisdiction to be illegal, void or unenforceable, such provision
shall be thereafter amended by the parties hereto such that it is thereafter
legal, valid and enforceable and gives effect to the intention of the parties,
but in any event the illegality or unenforceability of such provision shall have
no effect upon and shall not impair the enforceability of any other provision of
this Agreement.
-7-
81
6.7 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of California applicable to agreements
made and to be performed in such jurisdiction.
6.8 Assignment. Except as provided in Section 4, neither CG nor ABGENIX
shall delegate duties of performance or assign, in whole or in part, rights or
obligations under this Agreement without the prior written consent of the other
party, except that either party may assign this Agreement without such consent
to entity that acquires all or substantially all of the assets or business of
such party, whether by sale, merger or otherwise. 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.
6.9 Counterparts. This Agreement may be executed in one or more
counterparts each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
6.10 Headings. The headings of this Agreement are included for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
This Voting Agreement is executed by the parties as of the date
indicated above.
ABGENIX, INC. CELL GENESYS, INC.
/s/ R. XXXXX XXXXX /s/ XXXXXXX X. XXXXXXX
------------------------------- -------------------------------
R. Xxxxx Xxxxx Xxxxxxx X. Xxxxxxx
President and Chief President and Chief
Executive Officer Executive officer
-8-
82
EXHIBIT I
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT FOR
DISTRIBUTION. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR UNLESS SOLD IN COMPLIANCE WITH SUCH ACT.
Foster City, California
$4,000,000 July 15, 1996
CONVERTIBLE PROMISSORY NOTE
ABGENIX, INC., a Delaware corporation (the "Abgenix"), for value
received, receipt of which is hereby acknowledged, hereby promises to pay to
Cell Genesys, Inc., a Delaware corporation ("CG" or "Holder"), at the address
set forth below or at such other place as the Holder hereof may designate in
writing, or order, in lawful United States currency, the sum of $4,000,000, or
such lesser amount as shall then equal the outstanding principal amount hereof,
and any unpaid accrued interest hereon, as set forth below, on or before July
14, 2000.
1. Principal. From time to time, Abgenix may draw against the maximum
principal amount of this Note (a) to pay any amount due to CG pursuant to the
Services Agreement between Abgenix and CG effective as of July 15, 1996, (b) for
expenses incurred in connection with a facilities or equipment lease approved by
the Abgenix Board of Directors, or (c) with the prior written consent of CG;
provided, however, that in no event shall Abgenix be able to make any further
draws against the maximum principal amount of this Note after the closing of a
financing in which Abgenix receives net proceeds of more than $9,000,000,
without the prior written consent of CG. Draws made hereunder shall be noted by
the Holder on Exhibit A hereto. The maximum principal amount of this Note shall
be reduced by the amount of any principal converted into shares of Abgenix, as
provided in Section 4 below.
2. Interest. Interest shall accrue at the rate of 6.82% per annum (the
"Initial Interest Rate") on the outstanding principal of this Note until July
15, 1997, whereupon the accrued interest shall be added to the outstanding
principal of this Note. Thereafter, commencing on September 30, 1997, and on
each December 30, March 31, June 30 and September 30 thereafter until all
outstanding principal and interest on this Note shall have, been paid in full,
Abgenix, shall pay interest quarterly at the Initial Interest Rate. In the event
that the outstanding principal amount of this Note is not paid when such amount
becomes due and payable, interest at the Initial Interest Rate plus 2% per annum
shall continue to accrue on the balance of any unpaid principal until such
balance is paid in full.
83
3. Prepayment Option. Abgenix, upon no less than 30 business days'
advance written notice to the Holder and specifying the date on which such
prepayment shall occur, may prepay, in whole or in part, the balance of
principal remaining unpaid as of the date of such prepayment plus any interest
then accrued. All permitted prepayments shall be credited first against any
accrued interest and then against principal.
4. Holder's Option to Convert.
(a) The Holder has the right, at the Holder's option, at any time
after the earliest of (i) 180 days after the closing of Abgenix's initial public
offering of its Common Stock, (ii) July 14, 1999, and (iii) 20 business days
after Holder receives notice from Abgenix of its exercise of the prepayment
option pursuant to Section 3 hereof, to convert the outstanding principal of
this Note, in whole or in part, in accordance with the provisions set forth in
Section 4(e) hereof.
(b) Subject to paragraph (c), this Note shall be convertible into
fully paid and nonassessable shares of Series A Senior Convertible Preferred
Stock of Abgenix (the "Series A Preferred"). The number of shares of Series A
Preferred to be received upon conversion shall be determined by dividing the
aggregate amount of principal to be converted by $6.00 (the "Conversion Price").
(c) From and after such time, if any, that all of the outstanding
Series A Preferred is converted into shares of Abgenix's Common Stock (the
"Common Stock") in accordance with Section 2.4 of the Certificate of
Designations of Series A Senior Convertible Preferred Stock and Series 1
Subordinated Convertible Preferred Stock of Abgenix, this Note shall be
convertible into fully paid and nonassessable shares of Common Stock. In such
event, the number of shares of Common Stock to be received upon conversion shall
be determined by (a) dividing the aggregate amount of principal to be converted
by $6.00 and (b) multiplying the result by the Conversion Price for the Series A
Preferred as in effect immediately prior to its conversion into Common Stock.
(d) No fractional shares shall be issuable upon exercise of the
Holder's conversion rights. In lieu of fractional shares, if conversion of the
amount of principal and interest to be converted would yield a fractional share,
the number of shares to be issued upon such conversion shall be reduced to
prevent the issuance of said fractional share and the amount not so converted
shall be paid by Abgenix in cash.
(e) If the Holder wishes to convert all or any part of this Note,
it shall deliver to the office of Abgenix a written notice indicating the amount
of principal of this Note to be converted, and the name or names in which the
certificate or
2
84
certificates for the shares issuable upon such conversion are to be issued. Such
conversion shall be effective as of the close of business on the date of
delivery of such notice, or at such later time as the notice of conversion shall
specify. As promptly as practicable after receipt of such notice, Abgenix shall
issue and deliver to the Holder a certificate or certificates for the shares of
Series A Preferred or Common Stock issuable upon such conversion, together with
a check payable to the Holder for any cash amount payable for a fractional share
as described in Section 4(d) above. The maximum principal amount of this Note
shall be reduced by the amount of principal converted. If this Note is converted
in part but not in full, the Holder shall note on Exhibit A the amount of
principal converted. If this Note is converted in full, it shall be delivered to
Abgenix for cancellation, as provided in Section 16.
5. Adjustments for Stock Splits and Subdivisions. In the event that
Abgenix should at any time or from time to time after the date of issuance
hereof fix a record date for the effectuation of a split or subdivision of the
outstanding shares of Series A Preferred or the determination of holders of
Series A Preferred entitled to receive a dividend or other distribution payable
in additional shares of Series A Preferred or other securities or rights
convertible into, or entitling the holder thereof to receive directly or
indirectly, additional shares of Series A Preferred (hereinafter referred to as
"Series A Preferred Equivalents") without payment of any consideration by such
holder for the additional shares of Series A Preferred or the Series A Preferred
Equivalents (including the additional shares of Series A Preferred issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the Conversion Price of this Note shall be appropriately decreased so that the
number of shares of Series A Preferred issuable upon conversion of this Note
shall be increased in proportion to such increase of outstanding shares.
6. Adjustments for Reverse Stock Splits. If the number of shares of
Series A Preferred outstanding at any time after the date hereof is decreased by
a combination of the outstanding shares of Series A Preferred, then following
the record date of such combination, the Conversion Price for this Note shall be
appropriately increased so that the number of shares of Series A Preferred
issuable on conversion hereof shall be decreased in proportion to such decrease
in outstanding shares.
7. Shareholder Rights. The Holder hereof shall not have any rights as a
shareholder of Abgenix with regard to any shares subject to the conversion
rights under this Note prior to actual exercise or conversion resulting in the
purchase of said shares.
3
85
8. Notices of Record Date, etc. In the event of:
(a) any taking by Abgenix of a record of the holders of any class
of securities of Abgenix for the purpose of determining the holders thereof who
are entitled to receive any dividend (other than a cash dividend payable out of
earned surplus at the same rate as that of the last such cash dividend
theretofore paid) or other distribution, or any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right; or
(b) any capital reorganization of Abgenix, any reclassification
or recapitalization of the capital stock Abgenix or any transfer of all or
substantially all of the assets of Abgenix to any other person or any
consolidation or merger involving Abgenix; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of Abgenix,
Abgenix will mail to the Holder at least 10 days prior to the earliest date
specified therein, a notice specifying: (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, and the
amount and character of such dividend, distribution or right; and (ii) the date
on which any such reorganization, reclassification, transfer, consolidation,
merger, dissolution, liquidation or winding-up is expected to become effective
and the record date for determining stockholders entitled to vote thereon.
9. Events of Default. If any of the events specified in this Section 9
shall occur (an "Event of Default"), the Holder may, so long as such condition
exists, declare the entire principal and accrued interest hereon immediately due
and payable, by notice in writing to Abgenix:
(a) the failure of Abgenix to pay the principal and unpaid
accrued interest on this Note when due and payable, if such default is not cured
by Abgenix within 10 days after the Holder has given Abgenix notice of such
default;
(b) the institution by Abgenix of voluntary proceedings in
bankruptcy, under any insolvency law, for corporate reorganization, for
dissolution or for an assignment for the benefit of creditors; or the
institution of involuntary proceedings against Abgenix in bankruptcy, under any
insolvency law, for corporate reorganization, for the appointment of a receiver;
or for dissolution, if such involuntary proceedings are not dismissed within 60
days of their institution or if Abgenix files a response admitting or consenting
to the material
4
86
allegations in the applications for such involuntary proceedings or the relief
prayed for therein;
(c) the cessation of operations by Abgenix other than because of
merger, consolidation, reorganization or sale of all or substantially all of its
assets, as a result of which the succeeding entity continues the business of
Abgenix;
(d) a transaction or series of related transactions pursuant to
the holders of Abgenix's voting stock immediately prior to such transaction(s)
hold less than a majority of the Abgenix's voting stock immediately after such
transactions; or
(e) a declared default of Abgenix under any indebtedness for
borrowed money that gives the holder thereof the right to accelerate such
indebtedness, and such indebtedness is in fact accelerated by the holder.
10. Legend; Compliance with Securities Act; Transferability of Note.
(a) Legend. This Note and the shares issued upon conversion
hereof shall be imprinted with a legend in substantially the following form:
"THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT FOR
DISTRIBUTION. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR UNLESS
SOLD IN COMPLIANCE WITH SUCH ACT."
(b) Compliance with Securities Act. This Note may not be assigned
or transferred except as provided herein and in accordance with and subject to
the provisions of the Securities Act.
(c) Transferability of Note. Except as set forth below, this Note
may not be assigned or transferred without the consent of Abgenix.
Notwithstanding the foregoing, this Note may be assigned or transferred without
consent (i) to a successor in interest to all or substantially all of the assets
or business of the Holder or (ii) to a person controlling, controlled by or
under common control with the Holder.
11. Notice. All notices required or permitted to be given under this
Note shall be in writing and shall be sent by facsimile transmission or mailed
by registered or certified mail addressed to the party to whom such notice is
required or permitted to be given. All notices shall be deemed to have been
given when transmitted if given by facsimile and confirmation of
5
87
receipt is received or, if mailed, 48 hours after mailed as evidenced by the
postmark at the point of mailing.
All notices to Abgenix shall be addressed as follows:
Abgenix, Inc,
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
All notices to the Holder shall be addressed as follows:
Cell Genesys, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
Either party may, by written notice to the other, designate a new address to
which notices to the party giving the notice shall thereafter be mailed.
12. Construction. This Note shall be governed and construed under the
laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely in California.
13. Enforcement Costs; Waivers. If Abgenix shall default in making any
payment due under this Note, it will pay to Holder such further amounts as shall
be sufficient to pay the costs and expenses of collection, including reasonable
attorneys' fees, whether collected in a proceeding at law or in equity, or in
bankruptcy, receivership or other judicial proceedings, or if placed in the
hands of attorneys for collection. Abgenix waives its rights to impose any
defense other than payment, including, without limitation, any rights or
purported rights to set-off, counterclaim or cross-claim, in any action brought
on this Note. Abgenix hereby waives presentment, demand for performance, notice
of performance, protest, notice of protest and notice of dishonor.
14. No Waiver by Delay. No delay on the part of Holder in exercising any
right hereunder shall operate as a waiver of such right under this Note.
15. Severability. If any provision of this Note is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Note shall be deemed valid and
enforceable to the full extent.
6
88
16. Cancellation. Upon payment in full of all principal and interest due
hereunder, or upon conversion of this Note in full, the Holder shall return this
Note to Abgenix for cancellation.
IN WITNESS WHEREOF, Abgenix has caused this Convertible Note to
be executed as of the date and year first set forth above.
ABGENIX,
By: /s/ R. XXXXX XXXXX
-------------------------------
R. Xxxxx Xxxxx
President and Chief Executive Officer
7
89
EXHIBIT A
TO CONVERTIBLE PROMISSORY NOTE
Maximum Principal Amount: $4,000,000
Principal Total
Principal Amount Paid Principal
Date Amount Drawn or Converted Outstanding
---- ------------ ------------ -----------
$ $
8
90
Exhibit J
Patent Assignment Agreement
[OMITTED - SEE EXHIBIT 10.18]
-45-
91
Exhibit K
Certificate of Designations
[OMITTED -- SEE EXHIBIT 3.2]
-46-
92
Exhibit L
Certificate of Incorporation
[OMITTED -- SEE EXHIBIT 3.1]
-47-
93
Exhibit M
By Laws
[OMITTED -- SEE EXHIBIT 3.4]
-48-
94
Exhibit N
Employee Notes
None.
-49-
95
EXHIBIT O
EQUIPMENT
Asset Estimated
Approved No. Description Bldg. Location Cost
---------------------------------------------------------------------------------------------------------------------------
Yes 1341 Matrix Pipettor 324 AD QC lab 1,045
Yes 1227 HPLC-HP 1050 324 AD & QC lab 52,618
Yes 1380 Spectramax Plate Reader 324 AD/QC Lab 19,500
Yes 1140 Xxxx Xxxxxx Refrigerated Water Bath 324 Biochem lab Rm 248 1,040
Yes 1034 Xxxxxx Refrigerator Water Bath 324 Biochemistry Room 248 2,784
Yes 1149 Advantek Fraction Collector 324 Biochemistry lab Rm 248 4,200
Yes 1035 Xxxxxxx BioMek SL 324 Biochemistry Room 248 38,861
Yes 1148 Sorvall RC 5C Centrifuge 324 Equipment Rm 16,160
Yes 1019 Xxxxxx Isotemp Freezer 324 Equipment Room 2,205
Yes 805 Media Cold Box 324 Hall 3,112
Yes 1113 HP Laser Jet 4 324 Hall 1,972
Yes 1072 Bio-Tek Plate Washer 324 Hybridoma lab 4,900
Yes 1187 Moduline Plate Coater 324 Hybridoma lab 5,200
Yes 1188 Innove 4080 Incubator Shaker 324 Hybridoma lab 4,583
Yes 1233 Millpore Plate Washer 324 Hybridoma lab 1,360
Yes 1268 Xxxxxxx XX-6R Centrifuge 324 Hybridoma lab 6,265
Yes 996 HP Desk Jet 1200C/PS 000 Xxxx Xxxx 1,950
Yes 370 Dissecting Microscope & Light 324 Micro Injection 7,205
Yes Xxxxxx Pipette Puller 324 Microinjection
Yes 104 Nikon Diaphot Microscope 324 Microinjection lab 30,900
Yes 106 Xxxxxx Microfuge 324 Microinjection lab 2,591
Yes 140 Wild Leitz Dissecting Microscope 324 Microinjection lab 2,898
Yes 151 Precision Water Bath Heater 324 Microinjection lab 650
Yes 355 Xxxxxx Balance 324 Microinjection lab 1,309
Yes 576 Nikon Dissecting Microscope 324 Microinjection lab
Yes 917 Forma Laminar Flow Hood 324 Microinjection lab 3,520
Yes 918 Incubator (embryology) 324 Microinjection Lab 5,846
Yes 1009 Nikon Dissecting Microscope 324 Microinjection lab 6,509
Yes 1053 TV Monitor (used w/Microscope -- See CG 00140) 324 Microinjection lab 1,715
Yes 925 Forma Cage Hood 000 Xx 000 4,215
Yes 000 Xxxxxxxx XXX Xxxxxxx 000 Xx 000 80,000
Yes 1192 Forma Laminar Flow Hood 324 Rm 102
Yes 1191 Forma Laminar Flow Hood 324 Rm 103
Yes 916 Forma Laminar Flow Hood 324 Rm 109 4,008
Yes 000 Xxxxx Xxxxxxx Xxxx Xxxx 000 Xx 000 4,008
Yes 000 Xxxxx Xxxxxxx Xxxx Xxxx 000 Xx 000 4,008
Yes 000 Xxxxx Xxxxxxx Xxxx Xxxx 000 Xx 000 4,008
Yes 909 Forma Laminar Flow Hood 324 Rm 135 4,008
Yes 910 Incubator 324 Rm 136 5,846
Yes 000 Xxxx 000 Xx 000 3,520
July 15, 1996
96
EXHIBIT O
EQUIPMENT
Asset Estimated
Approved No. Description Bldg. Location Cost
---------------------------------------------------------------------------------------------------------------------------
Yes 533 Compaq Computer 324 Rm 201 1,895
Yes 665 Vacuum Pump 324 Rm 201 AD + QC Lab 1,780
Yes 809 Xxxxxx Fraction Collector 324 Rm 201 AD + QC Lab 1,610
Yes 989 Glyco Face Imager 324 Rm 201 AD + QC Lab 19,500
Yes 666 Xxxxxx Isotemp Freezer 324 Rm 205 Equipment Room 2,335
Yes 899 Forma - 80O Freezer 324 Rm 205 Equipment Room 5,612
Yes 900 Forma - 80O Freezer 324 Rm 205 Equipment Room 5,612
Yes 901 Forma - 80O Freezer 324 Room 205 Equipment Room 5,612
Yes 000 Xxxxxx 000 000 Xx 000 1,224
Yes 0000 Xxxxxx 000 000 Xx 000 990
Yes 0000 Xxxxx Xxxxxxxxxx 000 Xx 000 4,931
Yes 531 Sysmex X-00X Xxxxx Xxxx Xxxxxxx 000 Xx 000 Hybridoma 18,269
Yes 585 Sysmex Auto Diluter 000 Xx 000 Hybridoma 1,300
Yes 000 Xxxxxxx XX Xxxxx 000 Xx 000 Hybridoma Research 1,192
Yes 959 Xxxxxx Isotemp Deli Xxx 000 Xx 000 Hybridoma Research 5,095
Yes 0000 Xxxxxxxxx Centrifuge 5415C 324 Rm 206 Hybridoma Research 1,756
Yes 863 Forma CO2 Incubator 000 Xx 000 5,846
Yes 929 Forma Lab Freezer 000 Xx 000 2,545
Yes 000 Xxxxxxx XX 0X Xxxxxxxxxx 000 Xx 000 6,265
Yes 000 XXX Xxxxxx Xxxxx 000 Xx 000 1,200
Yes 000 Xxxxx Xxxxxxx 000 Xx 000 3,148
Yes 891 Fume-Hood 000 Xx 000 2,530
Yes 1002 Xxxxxxx XX 6R Centrifuge 324 Rm 000 Xxxxx Tech 6,265
Yes 1003 Nikon Microscope 324 Rm 000 Xxxxx Tech 4,979
Yes 000 Xxx Xxxx 000 Xx 000 1,811
Yes 000 Xxx Xxxx 000 Xx 000 2,711
Yes 798 Revco Deli Xxx 000 Xx 000
Yes 954 Pharmacia PhastSystem 324 Rm 248 7,365
Yes 955 FPLC - Pharmacia 000 Xx 000 41,423
Yes 956 Pharmacia Ultrospec III 324 Rm 248 2,434
Yes 1050 Refrigerator 000 Xx 000 5,745
Yes 1071 Pharmacia Smart System 324 Rm 248 Biochemistry lab 52,700
Yes 000 Xxx Xxx XXX 000 Xx 000 Biochemistry lab 13,465
Yes 789 Flammable Material Refrigerator 324 Rm 248 Biochemistry lab 1,266
Yes 1085 NEC Image 466es 324 Rm 248 Biochemistry lab 5,486
Yes 1005 Xxxxxx Refrigerator Water Bath 324 Rm 248 Biochemistry lab 2,784
Yes 882 Forma CO2 Incubator 000 Xx 000 5,846
Yes 884 Forma Biological Safety Cabinet 000 Xx 000 5,040
Yes 890 Forma Lab Refrigerator 000 Xx 000 3,367
Yes 794 Dionex Carbohydrate Analysis Gradient Pump 324 Rm 201 AD + QC Lab 15,000
Yes 924 Basil Water Filter 324 Room 101 7,312
July 15, 1996
97
EXHIBIT O
EQUIPMENT
Asset Estimated
Approved No. Description Bldg. Location Cost
---------------------------------------------------------------------------------------------------------------------------
Yes 152 Nikon Microscope 324 Room 236 4,000
Yes 712 Incubator - Roller Bottle 324 Room 236 5,045
Yes 945 Revco Refrigerator 324 Room 236 3,167
Yes 493 Eppendorf Microfuge 324 Room 237 1,866
Yes 494 Eppendorf Thermomiser 324 Room 237 2,082
Yes 495 Denver Analytical Xxxxxxx 000 Xxxx 000 2,416
Yes 496 Novex Power Supply 324 Room 237 2,750
Yes 654 Fraction Collector 324 Room 237 1,570
Yes 661 HPLC Michron Bio Resource Computer 324 Room 237 1,461
Yes 797 HP Protein Sequencer 324 Room 237 103,920
Yes 927 Forma Lab Freezer 324 Storeroom 2,545
Yes 928 Forma Lab Freezer 324 Storeroom 2,545
Yes 880 Forma CO2 Incubator 324 T.C. Lab 1 5,846
Yes 881 Forma CO2 Incubator 324 T.C. Lab 1 5,846
Yes 894 Forma Biological Safety Cabinet 324 T.C. Lab 1 5,040
Yes 895 Forma Biological Safety Cabinet 324 T.C. Lab 1 5,040
Yes 931 Xxxxxxx XX 6R Centrifuge 324 T.C. Lab 1 6,265
Yes 947 Nikon Microscope 324 T.C. Lab 1 4,390
Yes 878 Forma CO2 Incubator 324 T.C. Lab 2 5,846
Yes 879 Forma CO2 Incubator 324 T.C. Lab 2 5,846
Yes 892 Forma Biological Safety Cabinet 324 T.C. Lab 2 5,040
Yes 893 Forma Biological Safety Cabinet 324 T.C. Lab 2 5,040
Yes 932 Xxxxxxx XX 6R Centrifuge 324 T.C. Lab 2 6,265
Yes 946 Nikon TMS Microscope 324 T.C. Lab 2 4,390
Yes 1020 Xxxxxxx XX 6R Centrifuge 324 T.C. Lab 3 6,265
Yes 1025 Nikon Microscope 324 T.C. Lab 3 4,979
Yes 1029 Forma Biological Safety Cabinet 324 T.C. Lab 3 5,040
Yes 1030 Forma Biological Safety Cabinet 324 T.C. Lab 3 5,040
Yes 1031 Forma CO2 Incubator 324 T.C. Lab 3 5,846
Yes 1032 Forma CO2 Incubator 324 T.C. Lab 3 5,846
Yes 1213 Forma Biological Safety Cabinet 324 T.C. Lab 4 5,242
Yes 1232 Xxxxxxx XX 6R Centrifuge 324 T.C. Lab 4 7,040
Yes 1244 Kenmore Refrigerator/Freeezer 324 T.C. Lab 4 500
Yes 1206 Nikon TMS Microscope 324 T.C. Lab 5 4,931
Yes 1214 Forma Biological Safety Cabinet 324 T.C. Lab 5 5,242
Yes 1215 Forma Biological Safety Cabinet 324 T.C. Lab 5 5,242
Yes 1216 Forma CO2 Incubator 324 T.C. Lab 5 5,850
Yes 1217 Forma CO2 Incubator 324 T.C. Lab 5 5,850
Yes 1231 Xxxxxxx XX 6R Centrifuge 324 T.C. Lab 5 7,040
Yes 1245 Kenmore Refrigerator 324 T.C. Lab 5 500
Yes 1095 Cryomed Liquid Nitrogen Storage 324 Utility Rm 4,906
July 15, 1996
98
EXHIBIT O
EQUIPMENT
ASSET ESTIMATED
APPROVED NO. DESCRIPTION BLDG. LOCATION COST
---------------------------------------------------------------------------------------------------------------------
Yes 960 Cryomed Liquid Nitrogen Storage 324 Utility Room 4,750
Yes 000 Xxxxxx Xxxxxxx Liquid Nitrogen Storage 324 Utility Room 1
Yes 1015 Forma Biological Safety Cabinet 000 Xxxxx Xxxx Xx 000 5,040
Yes 1017 Forma CO2 Incubator 000 Xxxxx Xxxx Xx 000 5,741
Yes 1018 Forma CO2 Incubator 000 Xxxxx Xxxx Xx 000 5,741
Yes 1043 Walloc Heat Sealer 000 Xxxxx Tech. Room 241 1,500
Yes 1016 Forma Biological Safety Cabinet 000 Xxxxx Xxxx Xx 000 5,040
Yes 1041 TomTec Cell Harvester 000 Xxxxxxxxx Room 241 14,500
Yes 488 HP Desk Jet 550C Printer 324 1,100
Yes 489 HP Laser Jet 4 Printer 324 1,975
Yes 497 Xxxxxxx, Xxxx - Mac Centris 650 324 2,429
Yes 926 Baell Cage Warmer 324 53,464
Yes 1180 Bellco 10-roller Apparatus 324 2,352
Yes 1276 Matrix Pipettor 324 1,045
99
Exhibit P
Antibody Business Agreements
[***]
[***] 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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