License and Commercialization Agreement [Amendment No. 4] - Amgen Inc. and InterMune Inc.
AMENDMENT NO. FOUR TO LICENSE AND COMMERCIALIZATION AGREEMENT
This AMENDMENT NO. FOUR TO LICENSE AND COMMERCIALIZATION AGREEMENT (the
"AMENDMENT NO. FOUR") is made effective as of December 22nd, 2005 (the
"AMENDMENT EFFECTIVE DATE"), and is entered into by and between AMGEN INC., a
Delaware corporation having its principal place of business at One Amgen Center
Drive, Thousand Oaks, CA 91320-1799 ("AMGEN") and INTERMUNE, INC., a Delaware
corporation having its principal place of business at 3280 Bayshore Blvd.,
Brisbane, CA 94005 ("INTERMUNE"). Amgen and InterMune are sometimes referred to
herein individually as a "PARTY" and collectively as the "PARTIES," and
references to "InterMune" and "Amgen" shall include their respective Affiliates.
All capitalized terms used herein shall have the meaning given to them in the
Original Agreement (as defined below) unless otherwise defined herein.
Background
WHEREAS, the Parties entered into that certain License and
Commercialization Agreement effective as of June 15th, 2001, as amended (the
"ORIGINAL AGREEMENT") pursuant to which Amgen granted certain rights to
InterMune relating to the Licensed Products; and
WHEREAS, the Parties now desire to further amend the Original Agreement.
NOW THEREFORE, based on the foregoing premises and the mutual covenants and
obligations set forth below, and for good and valuable consideration, the
receipt and sufficiency of which the Parties hereby acknowledge, the Parties
hereby agree as follows:
1. The following shall be added to the Original Agreement as a new Section
2.3(i):
"(i) Amgen hereby grants to InterMune an exclusive [***] license under
Amgen's entire right, title and interest in and to the internet domain
name <infergen.com>, with the right to grant sublicenses (subject to
InterMune's compliance with Section 2.5 of this Agreement), to link to
such domain name solely on InterMune's website, and to use such domain
name solely in connection with the Licensed Products in the Territory.
InterMune shall reasonably consider any comments that Amgen or Other
Licensees may have with respect to the <infergen.com> website and
content thereof. InterMune shall be solely responsible for maintaining
the internet domain name <infergen.com>, including
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payment of any domain name maintenance fees, and for making all
content on the <infergen.com> website complete, accurate and not
misleading at all times. InterMune shall use commercially reasonable
efforts to prevent any obscene or offensive content, or content that
disparages Amgen, Other Licensees or Licensed Products, from being
placed on or associated with such website and domain name. InterMune
shall Indemnify Amgen and its Affiliates, agents, directors, officers,
and employees from and against any and all Losses arising from Third
Party claims resulting directly or indirectly from InterMune's use of
the <infergen.com> domain name or operation of the <infergen.com>
website, including but not limited to the content thereof. Upon
request by Amgen, InterMune will promptly take all actions necessary
to remove any use of Amgen's name on the website located at
<infergen.com> to which Amgen objects. InterMune will also clearly
identify itself on the website as the party controlling the operation
of such website.""
2. The first paragraph of Exhibit 2 Amgen Materials (Cell banks and Reference
Standards) (which is attached to Amendment Number 2 to License and
Commercialization Agreement dated December 31, 2004), is hereby amended in its
entirety as follows:
[***]
3. This Amendment No. Four is intended by the Parties to amend the Original
Agreement only to the extent of the specific amendment set forth above. This
Amendment No. Four, and the Original Agreement (collectively, the "TRANSACTION
AGREEMENTS"), set forth the complete, final and exclusive agreement with respect
to their subject matter and all the covenants, promises, agreements, warranties,
representations, conditions and understandings between the Parties hereto with
respect to such subject matter and supersede and terminate all prior agreements
and understandings between the Parties with respect to such subject matter.
There are no covenants, promises, agreements, warranties, representations,
conditions or understandings, either oral or written, between the Parties with
respect to such subject matter other than as are set forth in the Transaction
Agreements.
4. This Amendment shall be governed by and interpreted in accordance with the
substantive laws of the State of California and the Parties hereby submit to the
jurisdiction of the California courts, both state and federal.
5. No amendment, modification or supplement of any provision of this Amendment
shall be valid or effective unless made in writing and signed by a duly
authorized officer of each Party.
6. This Amendment may be signed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
***CONFIDENTIAL TREATMENT REQUESTED
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7. InterMune, Amgen, Valeant Pharmaceuticals North America and Valeant
Pharmaceuticals International have entered into that certain Consent to
Assignment Agreement dated November 23, 2005 ("Consent"). The Parties
acknowledge and agree that this Amendment shall be deemed a part of the
Agreements, as that term is defined in the Consent.
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IN WITNESS WHEREOF, the Parties have executed this Amendment No. Four in
duplicate originals by their duly authorized representatives as of the Amendment
Effective Date.
AMGEN INC. INTERMUNE, INC.
BY: /s/ Scott J. Foraker, Esq. BY: /s/ Robin Steele
--------------------------------- ------------------------------------
NAME: Scott J. Foraker, Esq. NAME: Robin Steele
TITLE: Vice President, Licensing TITLE: Senior Vice President &
General Counsel
DATE: December 22, 2005 DATE: December 22, 2005