E XHIBIT 10.4
A MENDMENT N O .
1 T O
C OLLABORATION A GREEMENT
AMONG E XELIXIS , I NC ., B AYER C ORPORATION AND G EN O PTERA LLC
T HIS A MENDMENT N O .
1 TO
T HE C OLLABORATION A GREEMENT (“Amendment No. 1”) is made
effective as of January 1, 2005 (“Amendment No. 1 Effective
Date”) and entered into on March 30, 2005 by and between
E XELIXIS , I NC .
(formerly known as Exelixis Pharmaceuticals, Inc.), a Delaware
corporation having its principal place of business in South San
Francisco, California (“Exelixis”), B
AYER CropScience LP, a partnership having its
principal place of business in Research Triangle Park, NC 27709
(“Bayer”) and G EN O PTERA LLC ,
a Delaware limited liability company having its principal place of
business in South San Francisco, California (the
“LLC”). Each of the above parties are individually
referred to as a “Party” or collectively as the
“Parties”.
R ECITALS
W HEREAS , Exelixis and Bayer A.G., an Affiliate of Bayer,
began working together in the field of pesticide research under a
collaboration agreement (“Original Agreement”) entered
into as of May 1, 1998, which agreement terminated as of the
effective date of the Collaboration Agreement (described
below);
W HEREAS , to
continue and expand upon the work initiated under the Original
Agreement, Exelixis and Bayer Corporation, an Affiliate of Bayer,
formed a joint venture, Genoptera LLC, and Exelixis, Bayer
Corporation and Genoptera entered into an LLC Operating Agreement
(the “Operating Agreement”), effective December 15,
1999;
W HEREAS , to
pursue the business objectives of the LCC, the Parties entered into
the Collaboration Agreement on January 1, 2000 (the
“Collaboration Agreement”) covering research directed
towards the discovery and testing of insecticides and nematicides
for crop protection, having a Research Term of eight (8) years from
the Effective Date; and
W HEREAS , on
November 1, 2002 Bayer Corporation transferred its membership
interest in Genoptera, and assigned the Operating Agreement and
Collaboration Agreement, to Bayer.
W HEREAS , Exelixis, Bayer and the LLC now agree that it is
in their collective best interests to amend the Collaboration
Agreement to permit early termination of the Research Term in
exchange for certain other consideration.
N OW ,
T HEREFORE
, in consideration of the premises
and mutual covenants contained herein, and for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the
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ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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Parties agree as follows:
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1.
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The Parties
hereby agree to amend the terms of the Collaboration Agreement as
provided below, effective as of the Amendment No. 1 Effective Date.
To the extent that the Collaboration Agreement is explicitly
amended by this Amendment No. 1, the terms of this Amendment No. 1
will control where the terms of the Collaboration Agreement are
contrary to or conflict with the following provisions. Where the
Collaboration Agreement is not explicitly amended, the terms of the
Collaboration Agreement will remain in full force and effect.
Capitalized terms used in this Amendment No. 1 that are not
otherwise defined herein shall have the same meanings defined in
the Collaboration Agreement.
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2.
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Section 2.1(b)
of the Collaboration Agreement is hereby deleted in its entirety
and replaced with the following:
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“ (b) The Research Term
will begin on the Effective Date and terminate on March 31,
2005.”
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3.
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Section 2.5(a)
of the Collaboration Agreement is hereby deleted in its entirety
and replaced with the following:
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“ (a)(i) Before the
Amendment No. 1 Effective Date. In the first Contract Year, the
LLC shall provide Exelixis with [*] in Research funding and
shall carry forward [*] for Research funding for the
subsequent Contract Year. At least ninety (90) days in advance of
the commencement of each Contract Year after the first Contract
Year but before the Amendment No. 1 Effective Date, Exelixis shall
provide the LLC with a written calculation of the Annual FTE Rate
for the following Contract Year in accordance with Section 1.3. For
Contract Years beginning prior to the Amendment No. 1 Effective
Date, if such Annual FTE Rate exceeds [*] , the LLC shall
provide Exelixis, at least sixty (60) days in advance of the
commencement of such Contract Year, written notice of whether the
LLC commits to provide sufficient Research funding (which shall
include any carry-forward described in this Section 2.5(a)) in the
subsequent Contract Year to support [*] FTEs at such Annual
FTE Rate. If the LLC does not provide such commitment, then the LLC
shall specify such lesser amount of research funding which it
commits to provide in the forthcoming Contract Year, which amount
shall not be less than [*] plus any carry-forward described
in this Section 2.5(a). The number of FTEs that are funded during
any given Calendar Year beginning prior to the Amendment No. 1
Effective Date shall equal the sum of such level of funding
specified by the LLC plus any carry-forward described in Section
2.5(b) divided by the Annual FTE Rate in effect for such Calendar
Year (which partial number being rounded down) is referred to in
this Section 2.5 and Section 9.2 as the “Specified
FTEs” for such Contract Years. The amount of Research funding
provided to Exelixis by the LLC in each Contract Year after the
first Contract Year
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C
ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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and prior to the Amendment No. 1
Effective Date shall equal the result of the following calculation:
multiply the number of Specified FTEs by the Annual FTE Rate for
such Calendar Year and deduct from the product of such
multiplication the amount of any Exelixis carry-forward described
in Section 2.5(b).
(a)(ii) After the Amendment No. 1 Effective Date.
For the calendar quarter beginning on the Amendment No. 1 Effective
Date, the LLC shall make a payment to Exelixis of $2,500,000. A
part of such payment to the amount of [*] shall be
designated as an “Adjusted FTE Payment”, which shall be
determined by the calculation described in Exhibit 1 hereto, and
the remainder in the amount of [*] shall be designated as a
“Termination Credit”, which remainder shall be fully
creditable against the Early Termination Fee owed by Bayer pursuant
to Section 14.2(b) and as described in Exhibit 1 hereto.
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4.
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Section 9.2 of
the Collaboration Agreement is hereby deleted in its entirety and
replaced with the following:
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“ 9.2 Research Funding.
From the Effective Date until the end of the Research Term,
Exelixis will invoice the LLC (and send a copy of the first such
invoice to Bayer) for and the LLC will make within thirty (30) days
thereafter quarterly advance payments to Exelixis as follows. For
quarters prior to the Amendment No. 1 Effective Date, such
quarterly advance payments shall be sufficient to pay for the
number of Specified FTEs (as defined in Section 2.5(a)) then
performing Research under this Agreement multiplied by the then
current Annual FTE Rate; in any event for each such calendar
quarter, the amount of research funding provided by the LLC to
Exelixis shall be not less than [*] of the amount calculated
in Section 2.5(a) and shall only exceed $2,500,000 in the event
that the LLC commits to provide more than [*] in Research
funding in the applicable Contract Year as set forth in Section
2.5(a). For the quarter beginning on the Amendment No. 1 Effective
Date, such quarterly advance payment shall be equal to
$2,500,000.”
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5.
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Exelixis hereby
confirms that the LLC has made the payment of $2,500,000 for the
calendar quarter beginning on the Amendment No. 1 Effective
Date , as set out in Sections 2.5 (a) (ii) and 9.2 of the
Collaboration Agreement, as amended herein.
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6.
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Section 14.2 of
the Collaboration Agreement is hereby deleted in its entirety and
replaced with the following:
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“14.2
Termination
