<PAGE>
EXHIBIT 10.1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED
IN THIS DOCUMENT, MARKED BY BRACKETS
([**]), HAS BEEN OMITTED AND FILED
SEPARATELY WTH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED
AMENDMENT NO. 1
TO THE
COLLABORATION AGREEMENT
THIS AMENDMENT NO. 1 TO THE COLLABORATION
AGREEMENT (this "Amendment") is made
effective as of August 29, 2005 (the
"Amendment Effective Date") by and between
AMGEN INC., a Delaware corporation having
its principal place of business at One
Amgen Center Drive, Thousand Oaks,
California 91320-1799 ("Amgen"), and VIACELL,
INC., a Delaware corporation having its
principal place of business at 245 First
Street, Cambridge, Massachusetts 02142
("ViaCell"). Amgen and ViaCell are
sometimes referred to herein individually
as a "Party" and collectively as the
"Parties".
WHEREAS, Amgen and ViaCell entered into
that certain Collaboration Agreement
dated December 23, 2003 (the "Agreement"),
pursuant to which ViaCell obtained
supplies of and a license under Amgen's
intellectual property rights in SCF and
Flt3-L for use in ViaCell's research and
development activities relating to cell
therapy products and services;
WHEREAS, the Agreement dictates how the
Parties may collaborate in the future
with respect to late stage clinical trials
and commercialization of ViaCell's
cell therapy products;
WHEREAS, ViaCell wishes to obtain a supply
of G-CSF and a license under Amgen's
intellectual property rights in G-CSF for
use in ViaCell's research and
development activities relating to cell
therapy products and services; and
WHEREAS, concurrently with the execution of
this Amendment the Parties are
entering into a Warrant Purchase Agreement
whereby Amgen is acquiring a warrant
to purchase the common stock of
ViaCell.
NOW, THEREFORE, in consideration of the
mutual promises and covenants
hereinafter set forth, the parties hereto
agree to amend the Agreement as
follows:
ARTICLE 1 - AMENDMENTS
1.1 AMENDMENT TO SECTION 1.8. Section 1.8
of the Agreement shall be replaced in
its entirety and read as follows:
1
<PAGE>
EXHIBIT 10.1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED
IN THIS DOCUMENT, MARKED BY BRACKETS
([**]), HAS BEEN OMITTED AND FILED
SEPARATELY WTH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED
"1.8 "CELL
THERAPY PRODUCT(S)" SHALL MEAN ANY TREATMENT, WHETHER A PRODUCT
OR A SERVICE,
THAT UTILIZES CELLS OR TISSUES [**] INCLUDING, WITHOUT
LIMITATION,
CB001, PRIOR TO THE EARLIER OF THE EXERCISE OF THE OPTION OR
THE EXPIRATION
OF THE OPTION PERIOD WITH RESPECT TO SUCH TREATMENT;
PROVIDED,
HOWEVER, THAT NO PRODUCT OR SERVICE WHICH INCLUDES OR IS
PRODUCED
USING G-CSF
SHALL BE A CELL THERAPY PRODUCT, UNLESS SUCH PRODUCT OR SERVICE
MEETS THE
DEFINITION OF A G-CSF PRODUCT. FOR THE AVOIDANCE OF DOUBT, ONCE
AMGEN EXERCISES
ITS OPTION WITH RESPECT TO A CELL THERAPY PRODUCT, SUCH
CELL THERAPY PRODUCT SHALL BE
DEEMED A COLLABORATION PRODUCT AND SHALL
CEASE TO BE
CONSIDERED A CELL THERAPY PRODUCT. FOR THE AVOIDANCE OF DOUBT,
ONCE THE OPTION
PERIOD EXPIRES WITH RESPECT TO A CELL THERAPY PRODUCT FOR
AN INDICATION
WITHOUT AMGEN HAVING EXERCISED ITS OPTION WITH RESPECT
THERETO SUCH
CELL THERAPY PRODUCT FOR THAT INDICATION SHALL BE DEEMED AN
UNOPTIONED CELL
THERAPY PRODUCT AND SHALL CEASE TO BE CONSIDERED A CELL
THERAPY
PRODUCT."
1.2 AMENDMENT TO SECTION 1.18. Section 1.18
of the Agreement shall be replaced
in its entirety and read as follows:
"1.18
"CONTRIBUTED PRODUCT" shall mean (a) SCF, (b) Flt3-L, (c) G-CSF
and
(d) [**] that
Amgen Controls and which Amgen has, [**], chosen to make
available to
ViaCell under this Agreement, and which ViaCell has expressly
accepted for use
in connection with Unoptioned Cell Therapy Products, Cell
Therapy Products
and/or Collaboration Products under this Agreement, as
listed on
Exhibit D, as updated from time to time by mutual agreement of
the
Parties."
1.3 AMENDMENT TO SECTION 1.64. Section 1.64
of the Agreement shall be replaced
in its entirety and read as follows:
"1.64
"UNOPTIONED CELL THERAPY PRODUCT(S)" shall mean any Cell
Therapy
Product for an
indication for which the Option Period has expired without
Amgen having
exercised its option with respect thereto."
1.4 AMENDMENT TO ARTICLE 1. Article 1 of
the Agreement shall be amended to
include a new Section 1.69 as follows:
"1.69 "G-CSF"
shall mean Amgen's granulocyte colony-stimulating factor, an
early-acting
hematopoietic growth factor, having the amino acid sequence
which is set
forth in Exhibit I [**]."
1.5 AMENDMENT TO ARTICLE 1. Article 1 of
the Agreement shall be amended to
include a new Section 1.70 as follows:
2
<PAGE>
EXHIBIT 10.1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED
IN THIS DOCUMENT, MARKED BY BRACKETS
([**]), HAS BEEN OMITTED AND FILED
SEPARATELY WTH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED
"1.70 "G-CSF
PRODUCT" shall mean any treatment, whether a product or a
service, that
utilizes [**]. For the purposes of this Agreement, any G-CSF
Product shall be
deemed a Cell Therapy Product with the same effect and
consequences
with respect to Collaboration Products and Unoptioned Cell
Therapy Products
(other than with respect to royalty payments provided for
under Section
8.4)."
1.6 AMENDMENT TO ARTICLE 1. Article 1 of
the Agreement shall be amended to
include a new Section 1.71 as follows:
"1.71
"UNOPTIONED G-CSF PRODUCT" shall mean any Unoptioned Cell
Therapy
Product that is
a G-CSF Product."
1.7 AMENDMENT TO ARTICLE 1. Article 1 of
the Agreement shall be amended to
include a new Section 1.72 as follows:
"1.72 "PHASE II
TRIAL(S)" shall mean those clinical trials on sufficient
numbers of
patients that, i
