Exhibit 10.3
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SHAREHOLDERS' AGREEMENT
OF
KIRIN-AMGEN, INC.,
a California corporation
TABLE OF CONTENTS
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Page
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RECITALS......................................................................... 1
1. CERTAIN DEFINITIONS........................................................ 3
1.01 Stock.............................................................. 3
1.02 EPO................................................................ 3
1.03 Field of Activity.................................................. 4
1.04 Expression Systems................................................. 4
1.05 Transferred Technology............................................. 4
1.06 EPO Technology..................................................... 5
1.07 EPO Organisms...................................................... 6
1.08 Core Technology.................................................... 6
1.09 Development Program................................................ 6
1.10 Party.............................................................. 7
2. FORMATION.................................................................. 7
2.01 Formation.......................................................... 7
2.02 Name............................................................... 7
2.03 Principal Office................................................... 8
2.04 Articles of Incorporation.......................................... 8
2.05 Bylaws............................................................. 8
2.06 Business Purpose................................................... 8
2.07 Fiscal Year ....................................................... 8
2.08 California Agent for Service of Process............................ 9
2.09 Counsel to Corporation ............................................ 9
2.10 Accountants to Corporation......................................... 9
2.11 Initial Capital.................................................... 9
2.12 Subscription....................................................... 10
2.13 Additional Capital................................................. 11
2.14 Withdrawals........................................................ 12
2.15 Default on Additional Capital Contribution Obligation.............. 12
2.16 Title to Property.................................................. 13
2.17 Occurrence of the Conversion Event................................. 13
3. CLOSING.................................................................... 14
4. CLOSING DOCUMENTS.......................................................... 14
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Page
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5. REPRESENTATIONS AND WARRANTIES OF AMGEN............................. 15
5.01 Good Standing............................................... 15
5.02 Authorization............................................... 15
5.03 No Breach................................................... 15
5.04 Title....................................................... 16
5.05 No Violations............................................... 17
5.06 No Litigation............................................... 18
5.07 Representations and Warranties.............................. 18
6. REPRESENTATIONS AND WARRANTIES OF KIRIN............................. 19
6.01 Good Standing............................................... 19
6.02 Authorization............................................... 19
6.03 No Breach................................................... 19
6.04 No Violations............................................... 20
6.05 No Litigation............................................... 20
6.06 Representations and Warranties.............................. 20
7. [INTENTIONALLY OMITTED]............................................. 21
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF KIRIN.................... 21
8.01 No Misrepresentations....................................... 21
8.02 Compliance with Agreement................................... 21
8.03 Delivery.................................................... 21
8.04 Opinion of Counsel.......................................... 23
8.05 No Litigation............................................... 24
8.06 Additional Documents........................................ 24
8.07 Hart-Scott-Rodino Clearance................................. 25
9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF AMGEN.................... 25
9.01 No Misrepresentations....................................... 25
9.02 Compliance with Agreement................................... 25
9.03 Delivery.................................................... 25
9.04 Opinion of Counsel.......................................... 26
9.05 No Litigation............................................... 28
9.06 Additional Documents........................................ 28
10. SURVIVAL AND INDEMNIFICATION........................................ 28
10.01 Survival of Representations and Warranties.................. 28
10.02 Indemnification............................................. 28
10.03 Mechanism................................................... 29
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Page
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11. BROKERS............................................................. 30
12. MANAGEMENT.......................................................... 31
12.01 Board of Directors.......................................... 31
12.02 Officers.................................................... 31
12.03 Actions Requiring Consent................................... 32
12.04 Accounting and Internal Controls............................ 33
12.05 Financial and Business Information and Tax Returns.......... 34
12.06 Bank Accounts............................................... 35
12.07 Independent Enterprise...................................... 35
12.08 Compensation of Officers and Directors...................... 35
12.09 Fiduciary Duty.............................................. 36
12.10 Other Activities............................................ 36
12.11 Non-Competition............................................. 36
13. BUSINESS MATTERS.................................................... 37
13.01 License Agreements.......................................... 37
13.02 Development Program......................................... 38
13.03 Services Agreements......................................... 39
14. RESTRICTIONS ON SHARES.............................................. 39
14.01 Overall Restrictions........................................ 39
14.02 Additional Restrictions..................................... 40
14.03 Purchase Price and Payment Date............................. 41
14.04 Delivery of Shares.......................................... 42
15. ADDITIONAL SHARES................................................... 42
16. ENDORSEMENT OF CERTIFICATE.......................................... 42
17. [INTENTIONALLY OMITTED]............................................. 43
18. COSTS AND EXPENSES.................................................. 43
19. EXPORT CONTROL LAWS................................................. 44
19.01 Export Law Compliance....................................... 44
19.02 Specific Authorization...................................... 44
20. DISTRIBUTIONS OF CASH............................................... 45
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Page
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21. DISSOLUTION/LIQUIDATION............................................ 45
21.01 Event of Dissolution...................................... 45
21.02 Final Accounting and Tax Returns.......................... 46
21.03 Liquidation............................................... 46
21.04 Cancellation of Certificates.............................. 47
22. MISCELLANEOUS PROVISIONS........................................... 48
22.01 Notices................................................... 48
22.02 Publicity and Disclosure.................................. 49
22.03 Entire Agreement; Amendment............................... 49
22.04 Waiver.................................................... 50
22.05 Enforcement............................................... 50
22.06 Remedies.................................................. 51
22.07 Headings.................................................. 51
22.08 Effectiveness............................................. 51
22.09 Attorneys' Fees and Costs................................. 52
22.10 Governing Law............................................. 52
22.11 Binding Effect............................................ 52
22.12 Exhibits.................................................. 52
22.13 Number and Gender......................................... 53
22.14 Counterparts.............................................. 53
22.15 Agreement to Perform Necessary Acts....................... 53
22.16 Validity.................................................. 53
22.17 Representations........................................... 54
22.18 Force Majeure............................................. 54
22.19 Expansion of Business..................................... 55
SIGNATURES.................................................................... 55
EXHIBIT SCHEDULE
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SHAREHOLDERS' AGREEMENT
-----------------------
THIS SHAREHOLDERS' AGREEMENT ("Agreement") is made and entered into at Los
Angeles, California, U.S.A. this 11th day of May, 1984, by and among AMGEN, a
California corporation, having its principal office at 1900 Oak Terrace Lane,
Thousand Oaks, California 91320, U.S.A . ("Amgen"), KIRIN BREWERY COMPANY,
LIMITED, a Japanese corporation, having its principal office at 26-1, Jingumae,
6 Chome, Shibuya-Ku, Tokyo 150, Japan ("Kirin"), and KIRIN-AMGEN, INC., a
California corporation, having its principal office at 1900 Oak Terrace Lane,
Thousand Oaks, California 91320, U.S.A. ("Corporation").
R E C I T A L S
A. Amgen has conducted research, has developed and possesses certain
existing proprietary technical information, technology and know-how relating to
genetic engineering which has enabled it to clone and express the gene for human
erythropoietin, and Amgen is continuing to develop human erythropoietin.
B. Kirin and Amgen believe that the aforementioned genetic engineering
techniques will have important application to the development of human
therapeutic products.
C. Kirin and Amgen desire to form Corporation for purposes of development,
manufacture, production and worldwide commercial sale of erythropoietin for
human therapeutic use.
D. Kirin and Amgen believe that a joint business effort between them
dedicated to such purposes would be of mutual benefit to the accomplishment
thereof and that the compatibility between Amgen and Kirin is such that
substantial economic returns may be gained by each through cooperative effort.
E. Amgen intends to contribute cash to Corporation, to assign to
Corporation, perpetually and irrevocably, all of its right, title and interest
in and to the Transferred Technology (as defined in Paragraph 1.05 below), and
to license to Corporation the Core Technology (as defined in Paragraph 1.08
below), exclusively with respect to its direct application to the Field of
Activity (as defined in Paragraph 1.03 below), as more fully set forth herein,
in consideration of the issuance to Amgen of capital stock in Corporation as
more fully set forth herein.
F. Kirin intends to contribute cash to Corporation in consideration of the
issuance to Kirin of capital stock in Corporation as more fully set forth
herein.
G. The simultaneous transfers and resultant issuances contemplated in
Recitals E. and F. above are intended to qualify as a tax-free incorporation of
Corporation pursuant to Section 351 of the Internal Revenue Code of 1954, as
amended.
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H. It is the desire of Kirin and Amgen to cooperate in other mutually
agreeable areas of business interest.
NOW, THEREFORE, it is agreed as follows:
1. CERTAIN DEFINITIONS
-------------------
As used in this Agreement, the following terms shall have the following
meanings:
1.01 Stock
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(a) The term Class A Common Stock shall mean the duly authorized no
par common stock of Corporation with no preference rights on liquidation.
(b) The term Class B Common Stock shall mean the duly authorized no
par common stock of Corporation which contains certain preference rights on
liquidation (as set forth in Para- graph 21 below), which preference rights
shall be in effect until the occurrence of the Conversion Event (as defined in
Paragraph 2.17 below), at which time all issued and outstanding Class B Common
Stock shall be automatically converted into Class A Common Stock on a share-for-
share basis eliminating any shareholder preference rights on liquidation of
Corporation.
1.02 EPO
The term EPO shall mean erythropoietin or a fragment thereof for use
in human therapeutic applications, whether
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manufactured or isolated from natural materials, and whether glycosylated or not
glycosylated.
1.03 Field of Activity
-----------------
The term Field of Activity shall mean- the areas of development,
manufacture, production and worldwide commercial sale of EPO, including EPO
pharmaceuticals, for human therapeutic use, but not for animal therapeutic use
nor- for commercial diagnostic use (collectively "EPO Products"), and shall
include but not be limited to, toxicology, dosage studies, pre-clinical studies,
clinical trials, product registration and government approvals, all relative to
the development, manufacture, production and worldwide commercial sale of such
EPO Products.
1.04 Expression Systems
------------------
The term Expression Systems shall mean any system of production of
EPO utilizing natural or synthetic genes or vectors or recombinant DNA
materials, including but not limited to, expression in e. coli, mammalian and/or
yeast cell systems.
1.05 Transferred Technology
----------------------
The term Transferred Technology shall mean all proprietary technical
information, technology and know-how, heretofore developed by Amgen, relating
specifically to EPO Products which are owned by Amgen, or which is covered or
protected by letters patent, patent applications, trademarks, service marks,
trade names, copyrights or licenses held by Amgen,
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as of the Closing Date, and which are required in the development, manufacture,
production, testing, assay, use or sale of EPO Products, including the EPO
Organisms (as defined in Paragraph 1.07 below) in existence as of the Closing
Date. By way of illustration, but not limitation, with respect to the foregoing,
Transferred Technology shall include the sequence of the EPO gene and
restriction map of the related vector and any information, know-how, data,
process, technique, algorithm, program, design, drawing, formula or test data
relating to any toxicology, dosage studies, pre-clinical studies, clinical
trials or testing in progress relating to EPO,as more fully set forth on Exhibit
"A" attached hereto. The Transferred Technology shall be assigned to Corporation
effective on the Closing Date pursuant to that certain Assignment and License
Agreement which is attached hereto as Exhibit "B" ("Amgen Assignment");
provided, however, that until such time as the Conversion Event occurs, Amgen
shall hold as custodian for Corporation and Kirin, the sequence of the EPO gene
and restriction map of the related vector.
1.06 EPO Technology
--------------
The term EPO Technology shall mean the Transferred Technology, as
well as all improvements and enhancements thereto developed by the Parties
hereafter- under the Development Program, and the Core Technology (as defined
in Paragraph 1.08 below), as well as all improvements and enhancements thereto
developed by the Parties hereafter which have been used in the development of
EPO Products whether within or without of the Development Program
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1.07 EPO Organisms
-------------
The term EPO Organisms shall mean any and all organisms developed by
Amgen which are assigned perpetually and irrevocably to Corporation pursuant to
the Amgen Assignment, and which have been genetically engineered to produce
biologically active EPO, as well as all improvements and enhancements thereto
developed by Amgen subsequent to the Closing Date pursuant to the Development
Program.
1.08 Core Technology
---------------
The term Core Technology shall mean Amgen's proprietary technical
information, technology and know-how, including without limitation, protein
purification, fermentation, process development and hybridomas, other than
Transferred Technology, which is required to conduct Corporation's business in
the Field of Activity. The Core Technology shall be licensed to Corporation
exclusively with respect to its direct application to the Field of Activity
pursuant to the Amgen Assignment.
1.09 Development Program
-------------------
The term Development Program, as more fully set forth in the
Development and Supply Agreement attached hereto as Exhibit "C," and which shall
have appended thereto the preliminary R&D Plan and Budget therefor, shall mean
any development conducted by Amgen, Kirin and/or Corporation and paid for by
Corporation relating to (i) toxicology, dosage studies, preclinical studies,
clinical trials and product registration of EPO
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in accordance with the laws, regulations and guidelines of the United States and
Japan, respectively, (ii) commercial manufacturing scale production of EPO in
one or more Expression Systems, and (iii) other mutually agreed upon development
activities related to the Field of Activity.
1.10 Party
-----
The term Party shall mean Kirin, Amgen or Corporation, as the
context shall indicate, or, when used in the plural, Kirin, Amgen and
Corporation, as the context shall indicate.
2. FORMATION
---------
2.01 Formation
---------
On or before the Closing Date (as defined in Paragraph 3 below),
Kirin and Amgen shall establish or cause to be established, "Kirin-Amgen, Inc.,"
which shall be a corporation organized under the laws of the State of
California. Immediately after its formation, Kirin-Amgen, Inc. shall become a
Party to this Agreement.
2.02 Name
----
The corporate designation of Corporation shall be "Kirin-Amgen,
Inc." or such other name as may be mutually agreed to by Kirin and Amgen.
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2.03 Principal Office
----------------
The principal office and place of business of Corporation shall be
located at 1900 Oak Terrace Lane, Thousand Oaks, California 91320, U.S.A., or at
such other place as may be mutually agreed to by Kirin and Amgen.
2.04 Articles of Incorporation
-------------------------
The Articles of Incorporation of Corporation ("Articles") shall be
as attached hereto as Exhibit "D," as may be amended from time to time as may be
mutually agreed to by Kirin and Amgen.
2.05 Bylaws
------
The Bylaws of Corporation ("Bylaws") shall be as attached hereto as
Exhibit "E", as may be amended from time to time as may be mutually agreed to by
Kirin and Amgen.
2.06 Business Purpose
----------------
The business of Corporation shall be to engage in the development,
manufacture, production and sale of EPO Products for human therapeutic use in
the Field of Activity and to otherwise exploit such EPO Technology for
commercial purposes by whatever means including, but not limited to, the license
or sale of such EPO Technology by mutual agreement of Kirin and Amgen, and to do
all things necessary, appropriate or advisable in furtherance thereof.
2.07 Fiscal Year
-----------
The fiscal year of Corporation shall be the calendar year
("Corporate Year").
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2.08 California Agent for Service of Process
---------------------------------------
The name of the initial agent for service of process on Corporation
in California is Joel S. Marcus, Esq., Musick, Peeler & Garrett, One Wilshire
Boulevard, Suite 2000, Los Angeles, California 90017.
2.09 Counsel to Corporation
----------------------
The law firm of Musick, Peeler and Garrett, One Wilshire Boulevard,
Suite 2000, Los Angeles, California 90017, shall act as general counsel for
Corporation until otherwise mutually agreed between Kirin and Amgen pursuant to
that certain Conflicts Letter of even date herewith which is attached hereto as
Exhibit "F".
2.10 Accountants to Corporation
--------------------------
The independent certified public accounting firm of Arthur Young and
Company, 515 South Flower Street, Suite 2600, Los Angeles, California 90071,
shall act as independent accountants to Corporation pursuant to that certain
engagement letter attached hereto as Exhibit "G".
2.11 Initial Capital
The initial capital of Corporation pursuant to the two (2)
subscriptions described in Paragraph 2.12 below, shall consist of a total of
twelve million (12,000,000) shares of no par value Class A Common Stock with the
right to one (1) vote per share ("Class A Common Stock"), and twelve million
(12,000,000) shares of no par value Class B Common Stock with the right to one
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(1) vote per share ("Class B Common Stock"). Upon the occurrence of the
Conversion Event (as defined in Paragraph 2.17 below), Kirin's shares of Class B
Common Stock shall be automatically converted on a share-for-share basis into
shares of Class A common stock subject to the terms of Paragraph 2.17 below and
the provisions contained in Corporation's Articles.
2.12 Subscription
Kirin hereby subscribes for twelve million (12,000,000) shares of
Class B Common Stock of Corporation, and Amgen hereby subscribes for twelve
million shares (12,000,000) shares of Class A Common Stock of Corporation. The
subscription price for all shares, whether of Class A Common Stock or Class B
Common Stock, shall be ONE DOLLAR (U.S. $1.00) per share, and shall be payable
as follows:
2.12.1 Kirin shall pay its full subscription price for the Class B
Common Stock by cashiers or certified check or by wire transfer from Kirin to
Corporation's account at a bank to be designated by both Kirin and Amgen
("Corporate Bank Account") on the Closing Date of the full subscription price of
TWELVE MILLION DOLLARS (US $12,000,000.00).
2.12.2 Amgen shall pay its full subscription price for the Class A
Common Stock as follows: (i) FOUR MILLION DOLLARS (U.S. $4,000,000.00) by
cashiers or certified check or by wire transfer from Amgen to the Corporate Bank
Account on the Closing Date, and (ii) a contribution and complete assignment in
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kind to Corporation on the Closing Date of all of the Transferred Technology,
such transfer to be made pursuant to the Amgen Assignment. Kirin and Amgen
acknowledge that the fair market value of Amgen's capital contribution to
Corporation described in subparagraph (ii) above shall be EIGHT MILLION DOLLARS
(U.S. $8,000,000.00).
2.13 Additional Capital
------------------
2.13.1 Subject to Paragraph 2.15 below, no additional capital stock
may be issued by Corporation other than by the mutual written consent of Kirin
and Amgen. The Parties hereto shall meet no less frequently than annually
following the formation of Corporation to determine its capital needs and the
business and Development Program for the next succeeding year.
2.13.2 In the event that the initial capital contributions to
Corporation pursuant to Paragraph 2.11 above (together with interest earned by
Corporation on the cash so contributed) are insufficient to fund the activities
of Corporation and the Development Program until such time as all approvals
(governmental or otherwise) have been obtained for the manufacture and sale of
EPO Products in the Field of Activity in the Kirin Territory and the Amgen
Territory (as defined in Paragraph 13 below), then in such event, Kirin and
Amgen may, but shall not be obligated to, agree to make additional capital
contributions to Corporation. Any such agreed upon capital contributions shall
be made in the proportion to which each Party's total capital contribution bears
to the
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aggregate capital contributions of Kirin and Amgen, from time to time existing.
Upon written notification by Corporation's Board of Directors to Kirin and Amgen
that Corporation does not have sufficient capital to complete the development of
the EPO Technology and to accomplish the business purposes of Corporation as
contemplated by this Agreement, Kirin and Amgen shall promptly meet with
management of Corporation to ascertain the amount of funding reasonably required
by Corporation under the circumstances. Kirin and Amgen shall thereafter enter
into a mutually acceptable agreement with respect to such additional capital
contributions, if any.
2.14 Withdrawals
-----------
Except as otherwise specifically provided in this Agreement, neither
Kirin nor Amgen shall have the right to withdraw or to demand a return of all or
any part of its capital contribution.
2.15 Default on Additional Capital Contribution Obligation
-----------------------------------------------------
To the extent that either Kirin or Amgen fails to contribute its
proportionate share of the additional capital called for under Paragraph 2.13
above, then from and after the date such capital was to have been contributed to
Corporation, the shareholding percentages of Kirin or Amgen shall promptly be
adjusted by Corporation to reflect the increase in capital contributed by either
Kirin or Amgen such that the shareholding interest of Kirin and Amgen shall
accurately reflect the percent-
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age of each Party's total Capital contribution as it bears to the aggregate
capital contributions of both Kirin and Amgen.
2.16 Title to Property
-----------------
Legal title to any and all property of Corporation shall be taken
and at all times held in the name of "Kirin-Amgen, Inc."
2.17 Occurrence of the Conversion Event
----------------------------------
2.17.1 The "Conversion Event" shall occur when the EPO Organisms
produce biologically active EPO in sufficient levels, as set forth below, which
Kirin can reasonably verify within thirty (30) days after receiving written
notice of the attainment thereof, to enable Corporation to conduct pre-clinical
studies in the E. Coli (50 mg EPO/1), Mammalian (50 Units EPO/ml), or Yeast Cell
(50 mg EPO/1) systems, both in Japan and in the United States.
2.17.2 The occurrence of the Conversion Event as set forth in
Paragraph 2.17.1 above, shall give rise to the automatic conversion of all of
Kirin's Class B Common Stock into Class A Common Stock on a share-for-share
basis. All Class B Common Stock shall thereafter be promptly cancelled, the
Articles amended, and only one class of common stock (to be designated common
stock) of Corporation shall thereafter be issued and outstanding.
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3. CLOSING
-------
The Closing hereunder shall take place at the offices of Musick, Peeler &
Garrett, One Wilshire Boulevard, Suite 2000, Los Angeles, California 90017, USA,
at 1:00 p.m. Pacific Daylight Time on June 15, 1984 ("Closing" and the "Closing
Date"), or such other date and/or place as shall be mutually agreed to by Kirin
and Amgen.
4. CLOSING DOCUMENTS
-----------------
At the Closing, each Party shall deliver such documents, instruments and
materials as are called for by this Agreement or as may be reasonably required
in order to carry out the provisions and purposes hereof, all of which shall be
satisfactory in substance and form to legal counsel for each Party. Without
limitation as to the foregoing and in addition to the various documents,
instruments and agreements contemplated in Paragraphs 8 and 9 below, the Parties
agree that, upon the request of any Party, each of them will from time to time
after the Closing Date execute, acknowledge and deliver or cause to be so done,
at their expense, any and all such further documents and instruments as may be
reasonably required for carrying out the purposes of this Agreement.
Simultaneously with such delivery and Closing, all steps shall be taken as may
be reasonably required to put
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Corporation in actual possession and operating control of the Transferred
Technology.
5. REPRESENTATIONS AND WARRANTIES OF AMGEN
To induce Kirin to enter into this Agreement, Amgen represents and warrants
to Kirin as of the date hereof as follows:
5.01 Good Standing
-------------
Amgen is a corporation duly organized, validly existing and in good
standing under the laws of the State of California and has all requisite power
and authority to: (i) own its assets to be conveyed in connection with this
Agreement; (ii) lawfully carry on its business as now being conducted; and (iii)
to make, execute, deliver and perform this Agreement and all contracts -and
documents to be executed in connection herewith.
5.02 Authorization
-------------
This Agreement has been duly authorized and, prior to the Closing
Date, will be approved by all necessary corporate action of Amgen and will be a
valid and legally binding obligation of Amgen in accordance with its terms.
5.03 No Breach
---------
Neither execution or delivery of this Agreement, the contracts and
instruments to be executed in connection herewith, nor its performance by Amgen
will conflict with, violate or
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result in a breach of any term, condition or provision of, nor constitute a
material default under, or result in the acceleration of any material obligation
under, or permit the termination of any indenture, material contract or other
material agreement to which Amgen is a party or by which Amgen or its properties
is subject or bound; nor will such execution, delivery or performance by Amgen
conflict with or violate the provisions of any judgment, decree, order to which
Amgen is subject or Amgen's restated Articles of Incorporation or Bylaws, or to
the best of its knowledge, any law or regulation.
5.04 Title
-----
Amgen has valid legal title in and to all of the assets to be
transferred and/or licensed to Corporation on the Closing Date pursuant to the
Amgen Assignment, including but not limited to, the Transferred Technology, the
Core Technology, free and clear of all security interests, liens, charges and
encumbrances whatsoever, and to the best of Amgen's knowledge, tax or other
inchoate liens. Amgen owns and has the right to use the Transferred Technology
and Core Technology in existence as of the date hereof and to be in existence as
of the Closing Date. To the best of Amgen's knowledge: (i) the Transferred
Technology and Core Technology in existence as of the date hereof and to be in
existence as of the Closing Date do not conflict with the rights of others; (ii)
there are no infringements by third parties of any letters patent or patent
applications which are part of the Transferred Technology and Core Technology in
exis-
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tence as of the date hereof and to be in existence as of the Closing Date; and
(iii) Amgen's operations and business as conducted as of and prior to the
Closing Date with respect to patent applications which are part of the
Transferred Technology and Core Technology in existence as of the date hereof
and to be in existence as of the Closing Date do not infringe upon the rights of
any person and/or entity not a Party hereto. No right, privilege, permission or
license, express or implied, under the Transferred Technology or Core Technology
in existence as of the date hereof and to be in existence as of the Closing
Date, has been granted or is in force pursuant to which any party, other than
Corporation, Kirin or Amgen, may make, have made, use or sell any Transferred
Technology or Core Technology in existence as of the date hereof and to be in
existence as of the Closing Date. No claims have been asserted by any person
relating to the EPO Technology in existence as of the date hereof and to be in
existence as of the Closing Date or challenging or questioning the validity or
effectiveness of any license or agreement related thereto, and there is no valid
basis for any such claim.
5.05 No Violations
-------------
Amgen is not in violation of any applicable ordinance or statute,
or, to the best of its knowledge, any law or regulation, with respect to its
ownership and operation of the Transferred Technology and Core Technology in
existence as of the date hereof and to be in existence as of the Closing Date,
nor has it received any notices or citations from any public or
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quasi-public authority in respect thereto, including but not limited to, the
Food and Drug Administration.
5.06 No Litigation
-------------
Amgen is not a party to any pending or threatened suit, action or
legal, administrative, arbitration or other proceeding which might materially
and adversely affect the business of Corporation, the Transferred Technology or
the Core Technology, in existence as of the date hereof or to be in existence as
of the Closing Date, or the transactions contemplated by this Agreement, nor
does Amgen know of any facts which are likely with the passage of time to give
rise to such a suit, action or proceeding.
5.07 Representations and Warranties
------------------------------
No representation or warranty of Amgen, nor any exhibit, document,
statement, certificate or schedule furnished to Kirin pursuant hereto or in
connection with the transactions contemplated hereby, contains any untrue
statement of a material fact, or omits to state a material fact necessary to
make statements or facts contained therein not misleading. The representations
and warranties of Amgen set forth in this Agreement and in any exhibit,
document, statement, certificate or schedule furnished or to be furnished
pursuant hereto shall be true on and as of the Closing Date as though such
representations and warranties were made on and as of Closing Date.
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6. REPRESENTATIONS AND WARRANTIES OF KIRIN
---------------------------------------
To induce Amgen to enter into and perform this Agreement, Kirin represents
and warrants to Amgen as of the date hereof as follows:
6.01 Good Standing
-------------
Kirin is a corporation duly organized and validly existing and in
good standing under the laws of the country of Japan and has all requisite power
and authority to lawfully carry on its business as now being conducted and to
make, execute, deliver and perform this Agreement and all instruments and
documents to be executed in connection herewith.
6.02 Authorization
-------------
This Agreement has been duly authorized and, prior to the Closing
Date will be approved by all necessary corporate action of Kirin and will be a
valid and legally binding obligation of Kirin in accordance with its terms.
6.03 No Breach
---------
Neither execution or delivery of this Agreement, the contracts and
instruments to be executed in connection herewith, nor its performance by Kirin
will conflict with, violate or result in a breach of any term, condition or
provision of, nor constitute a material default under, or result in the
acceleration of any material obligation under, or permit the termination of any
indenture, material contract or other material agreement to which Kirin is a
party or by which Kirin or its properties is
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subject or bound; nor will such execution, delivery or performance by Kirin
conflict with or violate the provisions of any judgment, decree, order to which
Kirin is subject or Kirin's Bylaws, or to the best of its knowledge, any law or
regulation.
6.04 No Violations
-------------
Kirin is not in violation of any applicable ordinance or statute, or
to the best of its knowledge, any law or regulation, nor has it received any
notices or citations from any public or quasi-public authority in respect
thereto.
6.05 No Litigation
-------------
Kirin is not a party to any pending or threatened suit, action or
legal, administrative, arbitration or other proceeding which might materially
and adversely affect the transactions contemplated by this Agreement, nor does
Kirin know of any facts which are likely with the passage of time to give rise
to such a suit, action or proceeding.
6.06 Representations and Warranties
------------------------------
No representation or warranty of Kirin, nor any exhibit, document,
statement, certificate or schedule furnished or to be furnished to Amgen
pursuant hereto or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make statements or facts
contained therein not misleading. The representations and warranties of Kirin
set forth in this Agreement and in any
-20-
exhibit, document, statement, certificate or schedule furnished or to be
furnished pursuant hereto shall be true on and as of the Closing Date as though
such representations and warranties were made on and as of Closing Date.
7. [INTENTIONALLY OMITTED]
---------------------
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF KIRIN
------------------------------------------------
All of the obligations of Kirin under this Agreement are subject to the
fulfillment, at or prior to the Closing Date, of each of the following
conditions:
8.01 No Misrepresentations
Kirin shall not have discovered any material error, misstatement or
omission in the representations and warranties made by Amgen in Paragraph 5
above.
8.02 Compliance with Agreement
Amgen shall have performed and complied with all agreements,
covenants and conditions required by this Agreement prior to the Closing Date.
8.03 Delivery
Kirin shall have had delivered to it each of the following:
8.03.1 Confirmation in form and substance reasonably satisfactory
to Kirin evidencing receipt of Amgen's monetary
-21-
capital contribution in the amount specified in Paragraph 2.12 above;
8.03.2 Duly executed counterpart of the Amgen Assignment effective
to (i) vest valid legal title to all Transferred Technology in Corporation, and
(ii) license the Core Technology exclusively to Corporation with respect to its
direct application to the Field of Activity, together with such other documents
and instruments as may be necessary to effectuate the assignments and licensing
contemplated by this Agreement;
8.03.3 Duly executed counterparts of the Bylaws and organizational
minutes of Corporation;
8.03.4 Duly executed, validly authorized and issued, fully paid and
non-assessable Class B Common Stock represented by Certificate No. 1, duly
issuing twelve million (12,000,000) shares thereof to Kirin;
8.03.5 Duly executed counterpart of the Development and Supply
Agreement;
8.03.6 Duly executed counterparts of the Kirin/ Kirin-Amgen, Inc.
and Amgen/Kirin-Amgen, Inc. Services Agreements which are attached hereto as
Exhibits "H" and "I", respectively ("Services Agreements");
8.03.7 Duly executed counterparts of the Kirin/ Kirin-Amgen, Inc.
and Amgen/Kirin-Amgen, Inc. License Agreements which are attached hereto as
Exhibits "J" and "K", respectively ("License Agreements"); and
8.03.8 Opinion of Amgen's counsel (as defined in Paragraph 8.04
below).
-22-
8.04 Opinion of Counsel
------------------
Amgen shall have delivered to Kirin an opinion of Cooley,
Godward, Castro, Huddleson & Tatum, legal counsel for Amgen, in a form
satisfactory to counsel for Kirin, dated as of the Closing Date, to the effect
that (i) Amgen is a corporation duly organized, validly existing and in good
standing under the laws of the State of California, and Amgen has the corporate
power to conduct its business where such business is now conducted and to
execute and deliver the Agreement; (ii) the execution, delivery and performance
of this Agreement, together with all instruments and documents executed in
connection therewith, and the transactions contemplated hereby have been duly
authorized and approved by the Board of Directors of Amgen; (iii) the Agreement,
together with all instruments and documents executed in connection therewith,
constitute valid and binding obligations of Amgen, enforceable in accordance
with their terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of creditors'
rights; (iv) the execution, delivery and performance by Amgen, together with all
instruments and documents executed in connection therewith, and the consummation
of the transactions contemplated hereby will not result in any conflict with or
material breach or violation by Amgen of, or default by Amgen under, its
Articles of Incorporation, Bylaws, or any judgment, decree, order, or indenture,
material obligation or agreement, or other
-23-
material instrument or document of or applicable to them known to such legal
counsel; and (v) the Amgen Assignment has been duly authorized, executed and
delivered by and on behalf of Amgen and effectively transfers to and vests in
Corporation (i) valid legal title to the Transferred Technology, and (ii) a
valid license of the Core Technology, free and clear of all claims, liens,
encumbrances or security interests of any kind.
In rendering the foregoing opinion, Cooley, Godward, Castro,
Huddleson & Tatum may rely on opinions of other counsel, reasonably acceptable
to Kirin, and, as to matters of fact, on searches of public records and
certificates of officers and directors of Amgen.
8.05 No Litigation
-------------
No suit, action or proceeding against Amgen shall be pending or
threatened before any court or governmental agency in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection with
this Agreement or the transaction contemplated hereby.
8.06 Additional Documents
--------------------
Amgen shall have delivered to Kirin such other instruments and
documents as may be, in the opinion of counsel for Kirin, reasonably necessary
to effectuate the transactions contemplated by this Agreement, and all legal
matters in connection with this Agreement and the transactions contemplated
hereby shall have been approved by counsel for Kirin.
-24-
8.07 Hart-Scott-Rodino Clearance
---------------------------
The waiting period described in Section 7A of the Clayton Act, 15
U.S.C.ss.18a has expired without adverse action by the Federal Trade Commission
("FTC") or Department of Justice ("DJ") of the United States, or an affirmative
response has been received from the FTC or DJ which has the effect of shortening
the waiting period.
9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF AMGEN
All of the obligations of Amgen under this Agreement are subject to the
fulfillment, at or prior to the Closing Date, of each of the following
conditions:
9.01 No Misrepresentations
---------------------
Amgen shall not have discovered any material error, misstatement or
omission in the representations and warranties made by Kirin in Paragraph 6
above.
9.02 Compliance with Agreement
-------------------------
Kirin shall have performed and complied with all agreements,
covenants and conditions required by this Agreement prior to the Closing Date.
9.03 Delivery
--------
Amgen shall have had delivered to it each of the following:
-25-
9.03.1 Confirmation in form and substance reasonably satisfactory
to Amgen evidencing receipt of Kirin's monetary capital contribution in the
amount specified in Paragraph 2.12 above;
9.03.2 Duly executed counterparts of the Articles, Bylaws
and Organizational Minutes of Corporation;
9.03.3 Duly executed, validly authorized and issued, fully paid and
non-assessable Class A Common Stock represented by Certificate No. 1, duly
issuing twelve million (12,000,000) shares thereof to Amgen;
9.03.4 Duly executed counterpart of the Development and Supply
Agreement;
9.03.5 Duly executed counterparts of the Services Agreements;
9.03.6 Duly executed counterparts of the License Agreements; and
9.03.7 Opinion of Counsel to Kirin (as defined in Paragraph 9.04
below).
9.04 Opinion of Counsel
------------------
Kirin shall have delivered to Amgen an opinion of Musick, Peeler &
Garrett, legal counsel for Kirin, in a form satisfactory to counsel for Amgen,
dated as of the Closing Date, to the effect that (i) Kirin is a corporation duly
organized, validly existing and in good standing under the laws of Japan and
Kirin has the corporate power to conduct its business where such
-26-
business is now conducted and to execute and deliver the Agreement; (ii) the
execution, delivery and performance of this Agreement, together with all
instruments and documents executed in connection therewith, and the transactions
contemplated hereby have been duly authorized and approved by the Board of
Directors of Kirin; (iii) the Agreement, together with all instruments and
documents executed in connection therewith, constitute valid and binding
obligations of Kirin, enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws of general application relating
to or affecting the enforcement of creditors' rights; and (iv) the execution,
delivery and performance by Kirin, together with all instruments and documents
executed in connection therewith, and the consummation of the transactions
contemplated hereby will not result in any conflict with or material breach or
violation by Kirin of, or default by Kirin under, its Articles of Incorporation,
Bylaws, or any judgment, decree, order, or indenture, material obligation or
agreement, or other material instrument or document of or applicable to them
known to such legal counsel.
In rendering the foregoing opinion, Musick, Peeler & Garrett may
rely on opinions of other counsel, reasonably acceptable to Amgen, and, as to
matters of fact, on searches of public records and certificates of officers and
directors of Kirin.
-27-
9.05 No Litigation
-------------
No suit, action or proceeding against Kirin shall be pending or
threatened before any court or governmental agency in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection with
this Agreement or the transaction contemplated hereby.
9.06 Additional Documents
--------------------
Kirin shall have delivered to Amgen such other instruments and
documents as may be, in the opinion of counsel for Amgen; reasonably necessary
to effectuate the transactions contemplated by this Agreement, and all legal
matters in connection with this Agreement and the transactions contemplated
hereby shall have been approved by counsel for Amgen.
10. SURVIVAL AND INDEMNIFICATION
----------------------------
10.01 Survival of Representations and Warranties
------------------------------------------
The respective representations and warranties of Kirin and of Amgen
shall survive the Closing and continue in full force and effect for a period
thereafter equal to the earlier of (i) five (5) years following the Closing
Date, or (ii) four (4) years after the Conversion Event.
10.02 Indemnification
---------------
Amgen shall indemnify and hold Kirin, Corporation and their
respective directors, officers, employees and agents harm-
-28-
less from and against any and all claims, liabilities, losses, costs, damages
and expenses, including costs of investigation, court costs, reasonable
attorneys' fees, to which any of them may become subject arising from or in any
manner connected with, directly or indirectly, any material misstatement, error
or omission in any representation or warranty of Amgen contained in this
Agreement (without effect upon Amgen's liability under the various instruments
and documents to be executed in connection herewith). Kirin agrees to indemnify
Amgen, Corporation and their respective directors, officers, employees and
agents, to the same extent that Kirin is being indemnified pursuant to the
immediately preceding section.
10.03 Mechanism
---------
The Party seeking indemnification hereunder ("Indemnified Party")
shall give written notice to the indemnifying party or parties ("Indemnifying
Party") of its indemnification claims hereunder, specifying the amount and
nature of the claim, and giving the Indemnifying Party the right to contest any
such claim represented by counsel of its choice; if any such claim is made
hereunder by the Indemnified Party and such claim arises from the claims of a
third party against the Indemnified Party and the Indemnifying Party does not
elect to undertake the defense thereof by written notice within fifteen (15)
days after receipt of the original notice from the Indemnified Party, the
Indemnified Party shall be entitled to indemnity pursuant to the
-29-
terms of this Agreement to the extent of its payment in respect of such claim.
To the extent that the Indemnifying Party undertakes the defense of such claim
in good faith by proceeding diligently at its expense, and without materially
impairing the financial conditions or operations of the Indemnified Party, the
Indemnified Party shall be entitled to indemnity hereunder only if, and to the
extent that, such defense is unsuccessful as determined by a final judgment of a
court of competent jurisdiction or is settled with the consent of the
Indemnifying Party. The Party defending a third party claim shall have the right
to choose its own counsel.
11. BROKERS
-------
Each of the Parties represents and warrants that it has dealt with no
broker or finder in connection with any of the transactions contemplated by this
Agreement, and, insofar as it knows, no broker or other person is entitled to
any commission or finder's fee in connection with any of these transactions. The
Parties hereto each agree to indemnify and hold harmless one another against any
loss, liability, damage, cost, claim, or expense, including reasonable
attorneys' fees, incurred by reason of any brokerage, commission, or finder's
fee alleged to be payable because of any act, omission, or statement of the
Indemnifying Party.
-30-
12. MANAGEMENT
----------
12.01 Board of Directors
------------------
Corporation shall be managed by a Board of Directors consisting
initially of six (6) members. Kirin and Amgen shall each have the right to
nominate three (3) members of the Board of Directors. In the event of a default
in the payment of any additional capital contribution, as described in Paragraph
2.15 above, the authorized number of members of the Board of Directors shall be
increased to seven (7) and four (4) of such members shall be nominees of the
non-defaulting party. The number of members of the Board of Directors cannot be
decreased or otherwise increased without the mutual written consent of Kirin and
Amgen. All actions by the Board of Directors shall require the affirmative vote
of a majority of the total members of Board of Directors at a meeting at which a
quorum is present, except for such actions as to which a higher than majority
vote is required pursuant to the provisions of this Agreement, the Articles, the
Bylaws or applicable law.
12.02 Officers
--------
Corporation shall have a Chairman of the Board, a President, Vice
President - Amgen, Vice President - Kirin, a Secretary, an Assistant Secretary,
a Chief Financial Officer and such other officers with such titles and duties as
the Board of Directors may determine. Any two or more offices may be held by
-31-
the same person. The Chairman of the Board, the Vice President - Kirin, the
Chief Financial Officer and the Assistant Secretary shall be nominees of Kirin.
The President, the Vice President - Amgen and the Secretary shall be nominees of
Amgen.
12.03 Actions Requiring Consent
-------------------------
In addition to any other items referred to in this Agreement
requiring consent of both of Kirin and Amgen, none of the following
actions shall be permitted to be taken by Corporation unless it shall
have obtained the consent of both Kirin and Amgen:
(i) The entry by Corporation into any business outside the Field
of Activity;
(ii) Any lending or borrowing of money by Corporation;
(iii) The acquisition, mortgage, pledge, sale, assignment,
transfer, or other disposition of any property of Corporation having a fair
market value in excess of ONE HUNDRED THOUSAND DOLLARS (US $100,000.00) by
Corporation (other than in connection with the sale of products and
services in the ordinary course of its business) or of any interest
(regardless of value) in the legal or beneficial ownership of any other
corporation or enterprise;
(iv) The adoption of a business plan, annual capital, operating
and development plans and budgets,
-32-
including any material modification thereof pursuant to Paragraph 12.07
below ("Business Documents");
(v) Any capital expenditure in excess of ONE HUNDRED THOUSAND
DOLLARS (US $100,000.00) by Corporation; and
(vi) Any material act in material contravention of this Agreement.
12.04 Accounting and Internal Controls
--------------------------------
Kirin and Amgen shall cause the management of Corporation to conduct
the business of Corporation at all times in accordance with high standards of
business ethics and to maintain Corporation's accounts in accordance with
generally accepted accounting principles consistently applied and, specifically,
to:
(i) Maintain full and accurate books, records, and accounts which
shall, in reasonable detail, accurately and fairly reflect all transactions
of Corporation; and
(ii) Devise and maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (a) transactions are
executed in accordance with general or specific authorizations, and (b)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles, all
tax returns and to maintain accountability for assets.
-33-
12.05 Financial and Business Information and Tax Returns
--------------------------------------------------
Kirin and Amgen shall cause the management of Corporation to:
(i) Present Business Documents to the Board of Directors and
Kirin and Amgen for approval;
(ii) Make available to all members of the Board of Directors
together with Kirin and Amgen on a regular basis, and as reasonably
requested, all such information and/or documents as may be required to
permit the Board of Directors and/or Kirin and Amgen, as the case may be,
to make informed judgments with respect to such Business Documents and all
other matters of interest to them;
(iii) Prior to March 15 of each Corporate Year, provide to Kirin
and Amgen regular annual audited financial statements by Corporation's
independent certified public accountants which shall include a statement of
profits and losses, changes in financial position and a balance sheet for
the year then ended, and including such other appropriate financial
information reasonably requested by the Parties; and
(iv) Cause to be prepared all federal, state and local tax returns
of Corporation ("Returns").
-34-
12.06 Bank Accounts
-------------
All funds of Corporation shall be deposited in the name of
Corporation in such bank account or accounts as shall be determined by mutual
agreement of Kirin and Amgen. All withdrawals therefrom shall be made upon
checks signed on behalf of Corporation by any one officer, except for (i)
amounts in excess of FIVE THOUSAND DOLLARS (US $5,000.00), and (ii) any payments
to be made to Kirin and/or Amgen, in which case all such checks shall require
the signature of one (1) Kirin officer and one (1) Amgen officer. The Parties
hereto shall not make deposits in or issue any checks against the Corporation
bank account(s) without full, proper and complete supporting records.
12.07 Independent Enterprise
----------------------
Kirin and Amgen agree to cause Corporation at all times to be
conducted as an independent enterprise for profit. Except as otherwise provided
herein, all commercial transactions between Corporation and Kirin and/or Amgen
(or their affiliates) shall be conducted on an arm's-length basis with neither
granting to the other terms or conditions more favorable than would be accorded
non-related third-parties, except as Kirin and Amgen may otherwise mutually
agree prior to such transaction.
12.08 Compensation of Officers and Directors
--------------------------------------
The officers and directors of Corporation will serve in their
respective positions for no compensation or remuneration whatsoever.
-35-
12.09 Fiduciary Duty
--------------
Kirin, Amgen, the officers and members of the Board of Directors of
Corporation shall all have the fiduciary responsibility for the safekeeping and
use of all funds and assets (including records) of Corporation, whether or not
in immediate possession or control, for the exclusive benefit of Corporation and
its shareholders.
12.10 Other Activities
----------------
Kirin and Amgen may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
whether presently existing or hereafter created, other than for the purpose of
development, manufacture, production and sale of EPO Products.
12.11 Non-Competition
---------------
Kirin and Amgen agree that, except as specifically authorized by the
respective License Agreements, they shall not, directly or indirectly, nor shall
they permit any of their respective subsidiaries or affiliates, as applicable,
to engage in any business of a substantially similar nature to the business of
Corporation in the Field of Activity for a period of twenty (20) years from and
after the Closing Date, anywhere throughout the world, it being acknowledged
that the business of Corporation shall be worldwide.
-36-
13. BUSINESS MATTERS
----------------
13.01 License Agreements
------------------
As more fully set forth in those certain License Agreements, Kirin
and Amgen agree that:
(i) Kirin will have an exclusive right to manufacture and sell
EPO Products in the Field of Activity in the territory composed of the country
of Japan ("Kirin Territory") pursuant to the Kirin License Agreement and in no
other territory without the prior written consent of Amgen and Corporation.
(ii) Amgen will have an exclusive right to manufacture and sell
EPO Products in the Field of Activity in the territory composed of the fifty
(50) states of the United States of America, including the District of Columbia
and U.S. territories and possessions ("Amgen Territory") pursuant to the Amgen
License Agreement and in no other territory without the prior written consent of
Kirin and Corporation.
(iii) The Parties agree that Corporation may license one (1) other
entity in addition to Kirin and Amgen for the manufacture of EPO Products in the
Field of Activity outside of the Amgen Territory and Kirin Territory and may
license other entities in addition to Kirin and Amgen for the marketing of EPO
Products in the Field of Activity outside of the Amgen Territory and Kirin
Territory (that area of the world outside of the Amgen Territory and Kirin
Territory is herein referred to as
-37-
"Corporation Territory"); provided, however, that the Parties may mutually agree
to amend this Agreement and the appropriate License Agreement at any time to
permit Kirin and/or Amgen to manufacture and sell EPO Products in the Field of
Activity in parts of Corporation Territory. The rights of Corporation to grant
further licenses as set forth above shall not be diminished thereafter with
respect to the remainder of Corporation Territory.
13.02 Development Program
-------------------
As more fully set forth in the Development and Supply Agreement,
Kirin and Amgen agree to conduct on behalf of Corporation, on an accelerated and
coordinated basis, development, toxicology, dosage studies, pre-clinical
studies, clinical trials and/or product registration for the purpose of securing
all approvals (governmental or otherwise) necessary for Kirin and Amgen to
engage in the Field of Activity and manufacture and sell EPO Products in their
respective territories. Corporation will retain responsibility for (and with the
consent of both Kirin and Amgen may enter into agreements similar to those
contemplated hereunder) the conduct of toxicology, dosage studies, pre-clinical
studies, clinical trials and product registration for the purpose of securing
all approvals (governmental or otherwise) necessary for Corporation to engage in
the Field of Activity and manufacture and sell EPO Products in the Corporation
Territory.
-38-
13.03 Services Agreements
-------------------
As more fully set forth in those certain Service Agreements, Kirin
and Amgen agree that each will provide certain services to Corporation in order
to promote the business of Corporation in the Field of Activity.
14. RESTRICTIONS ON SHARES
----------------------
14.01 Overall Restrictions
--------------------
Corporation will be owned on the Closing Date by two (2) entities
which have the compatability and financial stability which are major elements
contributing toward the prospect of the future success of Corporation. Except in
accordance with the terms of this Agreement, neither Kirin nor Amgen shall sell,
transfer, assign, pledge, hypothecate or in any other way dispose of or
encumber, voluntarily or involuntarily, by bankruptcy, operation of law or
otherwise (any such event is referred to as a "Transfer") any of its shares or
any right or interest therein without the prior written consent of the other
("Nontransferring Shareholder"). Unless such prior written consent is given, the
proposed transfer may not take place, and any attempted Transfer in derogation
hereof shall be deemed null and void. If for any reason any clause or provision
of this Paragraph 14.01 should be held unenforceable, invalid or in violation of
law by any court or tribunal, then the Nontransferring Shareholder shall have
the
-39-
right, exercisable in writing within ninety (90) days of the date of final
determination of invalidity or unenforceability, to purchase all of the shares
of the transferring shareholder pursuant to the terms of Paragraph 14.03 below
which such transferring shareholder purported to Transfer.
14.02 Additional Restrictions
-----------------------
Upon the occurrence of any of the following events with respect to
Kirin or Amgen ("Occurrence Shareholder") (wherein there is not a continuity of
proprietary interest of the Shareholders of Kirin or Amgen who owned shares of
Kirin or Amgen, as the case may be, prior to the occurrence of such an event):
(i) any transfer of substantially all of its assets, (ii) any transfer of more
than fifty percent (50%) of the duly issued and outstanding stock, (iii) a
liquidation, dissolution, merger, consolidation or reorganization, or (iv) any
insolvency or bankruptcy proceeding, the Party which is not involved with such
an occurrence, shall have the right, exercisable in writing within sixty (60)
days after the later of (a) receipt of written notice of such occurrence, or (b)
the conclusion of the appraisal contemplated in Paragraph 14.03 below, to
purchase all of the shareholding interest in Corporation which is held directly
or indirectly by the Occurrence Shareholder pursuant to the terms of Paragraph
14.03 below. The Occurrence Shareholder shall notify the other Party in writing
of any occurrence described above in this Paragraph 14.02 at the very earliest
time practicable.
-40-
14.03 Purchase Price and Payment Date
-------------------------------
For purposes of Paragraphs 14.01 and 14.02 above, the purchase price
to be paid for each share of the Transferring or Occurrence Shareholder shall be
computed as follows:
(i) Prior to the occurrence of the Conversion Event, the purchase
price shall be the price originally paid to Corporation for such shares upon
initial issuance, i.e., ONE DOLLAR (US $1.00) per share, less an amount equal to
----
the pro rata (based upon the percentage relationship of one share to the total
number of shares outstanding to date) portion of the expenses paid by
Corporation through the end of the calendar quarter immediately preceding the
subject purchase.
(ii) After the occurrence of the Conversion Event, and within
sixty (60) days after the occurrence of an event described in Paragraphs 14.01
or 14.02 above, Kirin and Amgen either (a) shall jointly appoint an investment
banking firm, or (b) failing this joint action, each separately shall designate
an investment banking firm and, within thirty (30) days after their appointment,
the designated investment banking firms shall designate an investment banking
firm which shall make the final determination of value ("Neutral Investment
Banker"). The failure by either Kirin or Amgen to appoint an investment banking
firm within the time allowed shall be deemed equivalent to appointing the other
Party's investment banking firm as the Neutral Investment Banker. Within sixty
(60) days after the
-41-
appointment of the Neutral Investment Banker, the Neutral Investment Banker
shall render its appraisal of the fair market value of shares being purchased,
which appraisal shall be binding and conclusive. Corporation shall bear all
appraisal expenses.
(iii) The payment date of the purchase price pursuant to this
Paragraph 14 shall not be later than sixty (60) days after the sixty (60) day
period set forth in Paragraph 14.02 above.
14.04 Delivery of Shares
------------------
Any purchase of shares pursuant to this Agreement shall take place
on the payment date thereof. The certificates representing all of the shares so
purchased shall be duly endorsed and delivered to the purchaser(s) thereof on
the payment date.
15. ADDITIONAL SHARES
-----------------
In the event Kirin and/or Amgen acquire any additional shares of
Corporation, then any and all such shares shall be subject to the terms and
provisions of this Agreement.
16. ENDORSEMENT OF CERTIFICATES
---------------------------
Upon the execution of this Agreement, the certificates of stock subject
hereto shall be endorsed to read as follows:
-42-
"Any sale, assignment, transfer, pledge, bequest or other
disposition of the shares of stock represented by this
Certificate is restricted by and subject to the terms and
provisions of a Shareholders' Agreement dated May 11, 1984 by
and among this Corporation, Kirin and Amgen, a copy of which
Agreement is on file in the principal office of this
Corporation, which Agreement may from time to time hereafter
be amended. The shares of stock evidenced by this Certificate
have not been registered with the Securities and Exchange
Commission, but have been issued pursuant to the private
offering exemption under the Securities Act of 1933, as
amended." All certificates of stock hereafter issued to or
transferred to Kirin and Amgen shall bear the same endorsement.
17. [INTENTIONALLY OMITTED]
18. COSTS AND EXPENSES
------------------
Kirin and Amgen shall each bear and pay for their respective costs and
expenses regarding the negotiation and preparation of this Agreement and all
documents, instruments and agreements related thereto. The actual out-of-pocket
cost to form Corporation shall be reimbursed by Corporation to Musick, Peeler &
-43-
Garrett promptly after the Closing Date. Costs and expenses incurred by
Corporation after the Closing Date shall be paid by Corporation.
19. EXPORT CONTROL LAWS
-------------------
19.01 Export Law Compliance
---------------------
The Parties hereby agree that any Technical Data (as that term is
defined in Section 379.1 of the U.S. Export Administration Regulations) exported
from the United States pursuant to this Agreement and any other related
agreements, and any direct product thereof, shall not be shipped, either
directly or indirectly, to Afghanistan or any Group P, Q, S, W, Y or Z Countries
(as specified in Supplement No. 1 to Part 370 of the Export Administration
Regulations), unless (i) separate specific authorization to reexport such
Technical Data or such direct products is provided by the U.S. Office of Export
Administration or (ii) such specific authorization is not required pursuant to
Part 379.8 of the U.S. Export Administration Regulations. The Parties further
agree that the export and reexport of commodities pursuant to this Agreement and
any other related agreements shall be subject to the licensing requirements of
the U.S. Export Regulations.
19.02 Specific Authorization
----------------------
In the event that a specific authorization of, or a validated
license from, a government other than that of the
-44-
exporting party is required, Kirin and Amgen each agree that the Party,
including (if applicable) Corporation, within the jurisdiction of such other
government shall, upon the request of the Party proposing to make the export,
use its best efforts to obtain, as expeditiously as applicable, the requisite
authorization or license.
20. DISTRIBUTIONS OF CASH
---------------------
Subject to the terms of Paragraph 21 below, and upon the mutual
consent of Kirin and Amgen, distributions (as defined in Section 166 of the
California Corporate Securities Act of 1968, as amended) of cash shall be made
to Kirin and Amgen in accordance with their respective aggregate capital
contributions.
21. DISSOLUTION/LIQUIDATION
-----------------------
21.01 Events of Dissolution
---------------------
(i) Corporation shall be dissolved upon the mutual written
consent of Kirin and Amgen. (ii) Kirin shall have the unilateral right to cause
Corporation to be dissolved if the Conversion Event does not take place on or
before December 31, 1985. (iii) Corporation may be dissolved for federal and
California income tax purposes, but preserved in nominal form for California
state law purposes, by either Kirin or Amgen upon the
-45-
bankruptcy, receivership or insolvency of the other Party or Corporation, or
upon the material breach of this Agreement by the other Party.
21.02 Final Accounting and Tax Returns
--------------------------------
Upon the dissolution of Corporation, a complete and accurate
accounting shall be made by Corporation's independent certified public
accountants from the date of the last previous accounting to the date of
dissolution and all required tax returns shall be timely filed in connection
therewith.
21.03 Liquidation
-----------
Upon the dissolution of Corporation, Kirin and Amgen shall each
appoint three (3) individuals who shall jointly act as liquidator to wind up
Corporation (collectively "Liquidator"). The Liquidator shall have full power
and authority to take full account of Corporation's assets and liabilities and
to wind up and liquidate the affairs of Corporation in an orderly and business-
like manner as is consistent with obtaining the fair value thereof upon
dissolution. Corporation shall engage in no further business thereafter other
than as necessary to operate on an interim basis, collect its receivables, pay
its liabilities and liquidate its assets. All proceeds from liquidation shall be
distributed in the following order of priority: (i) first, to the payment of all
creditors of Corporation and the expenses of liquidation; (ii) second, to the
establishing of a reserve which the Liquidator deems reasonably necessary for
any contingent,
-46-
known or unforeseen liabilities or obligations of Corporation; and (iii) third,
the balance:
(a) If prior to the occurrence of the Conversion Event,
first to Kirin an amount of cash equal to the original price paid to
Corporation for its shares upon initial issuance, i.e., ONE DOLLAR (US
$1.00) per share, plus three-fourths (3/4ths) of the aggregate
interest income earned by Corporation from the Closing Date to the
date of such liquidation distribution. Kirin and Amgen agree that
Corporation shall not spend more than FOUR MILLION DOLLARS (US
$4,000,000.00) prior to the occurrence of the Conversion Event, unless
otherwise mutually agreed to in writing.
(b) If after the occurrence of the Conversion Event,
Corporation's net assets shall be valued in accordance with the
appraisal mechanism set forth in Paragraph 14.03(ii) above.
Thereafter, the net assets of Corporation shall be divided between
Kirin and Amgen in approximately equal value at the direction of the
Neutral Investment Banker.
21.04 Cancellation of Certificates
----------------------------
Upon the completion of the distributions in liquidation of
Corporation as provided in this Paragraph 21, Liquidator shall cause the
cancellation of all share certificates and shall take such other actions as may
be appropriate to finally dissolve and liquidate Corporation.
-47-
22. MISCELLANEOUS PROVISIONS
------------------------
22.01 Notices
-------
All notices, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
mailed to the Party to whom notice is to be given, by telex or facsimile, and
confirmed by first class mail, registered or certified, return receipt
requested, postage prepaid, and properly addressed as follows (in which case
such notice shall be deemed to have been duly given on the third (3rd) day
following the date of such sending):
"Kirin" Kirin Brewery Company, Limited
26-1, Jingumae 6-Chome
Shibuya-Ko, Tokyo 150
Japan
Telex No. 242-5401 Kirin B J
Attn: General Manager of R&D Department
With a copy to: Musick, Peeler & Garrett
One Wilshire Boulevard
Suite 2000
Los Angeles, CA 90017
U.S.A.
Telex No. 701357 (MPG LAW UD)
Attn: Joel S. Marcus, Esq.
"Amgen" Amgen
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
U.S.A.
Telex No. 4994440 (AMGEN)
Attn: Corporate Secretary
-48-
With a copy to: Cooley, Godward, Castro,
Huddleson & Tatum
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
U.S.A.
Telex No. 910-372-7370 Cooley SFO
Attn: Alan C. Mendelson, Esq.
"Corporation" Kirin-Amgen, Inc.
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
U.S.A.
Telex No. 4994440 (AMGEN)
Attn: Corporate Secretary
With a copy to: Musick, Peeler & Garrett
One Wilshire Boulevard
Suite 2000
Los Angeles, CA 90017
U.S.A.
Telex No. 701357 (MPG LAW UD)
Attn: Joel S. Marcus, Esq.
Any Party by giving notice to the others in the manner provided above may change
such Party's address for purposes of this Paragraph 22.01.
22.02 Publicity and Disclosure
------------------------
All notices to third parties and all other publicity concerning the
transactions contemplated by this agreement shall be jointly planned and
coordinated by and between the Parties hereto.
22.03 Entire Agreement; Amendment
---------------------------
This Agreement (together with all Exhibits attached hereto and all
documents and instruments delivered in connection
-49-
herewith) constitutes the full and complete agreement and understanding between
the Parties hereto and shall supersede any and all prior written and oral
agreements concerning the subject matter contained herein. This Agreement may
not be modified, amended nor may any provision hereof be waived without a
written instrument executed by Kirin, Amgen and Corporation.
22.04 Waiver
------
No failure or delay by any Party to insist upon the strict
performance of any term, condition, covenant or agreement of this Agreement, or
to exercise any right, power or remedy hereunder or thereunder or consequent
upon a breach hereof or thereof shall constitute a waiver of any such term,
condition, covenant, agreement, right, power or remedy or of any such breach or
preclude such Party from exercising any such right, power or remedy at any later
time or times.
22.05 Enforcement
-----------
The shares of stock of Corporation are unique and cannot be readily
purchased or sold in the open market. For this reason, among others, the Parties
hereto will be irreparably damaged in the event that this Agreement is not
deemed to be specifically enforceable, and the Parties hereby agree that this
Agreement shall be specifically enforceable. Such remedy shall be cumulative and
not exclusive and shall be in addition to any other remedy which the Parties may
have.
-50-
22.06 Remedies
--------
No right, power or remedy herein conferred upon or reserved to any
Party is intended to be exclusive of any other right, power or remedy or
remedies, and each and every right, power and remedy of any Party pursuant to
this Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall to the extent permitted by law be cumulative and concurrent, and
shall be in addition to every other right, power or remedy pursuant to this
Agreement, or now or hereafter existing at law or in equity or by statute or
otherwise and the exercise or beginning of the exercise by any Party of any one
or more of such rights, powers or remedies shall not preclude the simultaneous
or later exercise by any Party of any or all such other rights, powers or
remedies.
22.07 Headings
--------
Headings in this Agreement are included herein for the convenience
of reference only and shall not constitute a part of this Agreement for any
purpose.
22.08 Effectiveness
-------------
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall as to such jurisdiction be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or effecting the validity or enforceability of such provision
in any other jurisdiction.
-51-
22.09 Attorneys' Fees and Costs
-------------------------
In the event of any action at law or in equity between the Parties
hereto to enforce any of the provisions hereof, the unsuccessful party or
parties to such litigation shall pay to the successful party or parties all
costs and expenses, including actual attorneys' fees, incurred therein by such
successful party or parties; and if such successful party or parties shall
recover judgment in any such action or proceeding, such costs, expenses and
attorneys' fees may be included in and as part of such judgment. The successful
party shall be the party who is entitled to recover his costs of suit, whether
or not the suit proceeds to final judgment. A party not entitled to recover his
costs shall not recover attorneys' fees.
22.10 Governing Law
-------------
This Agreement shall be construed in accordance with the internal
laws, and not the law of conflicts, of the State of California applicable to
agreements made and to be performed in such state.
22.11 Binding Effect
--------------
This Agreement shall be binding upon and inure to the benefit of the
Parties hereto, their successors and assigns.
22.12 Exhibits
--------
All exhibits attached hereto and referred to herein are hereby
incorporated herein as though fully set forth at length.
-52-
22.13 Number and Gender
-----------------
Words in the singular shall include the plural, and words in a
particular gender shall include either or both additional genders, when the
context in which such words are used indicates that such is the intent.
22.14 Counterparts
------------
This Agreement may be executed in one or more counterparts by the
Parties hereto. All counterparts shall be construed together and shall
constitute one agreement.
22.15 Agreement to Perform Necessary Acts
-----------------------------------
Each Party agrees to perform any further acts and execute and
deliver any and all further documents and/or instruments which may be reasonably
necessary to carry out the provisions of this Agreement and to carry out the
business purpose of Corporation.
22.16 Validity
--------
If for any reason any clause or provision of this Agreement, or
the application of any such clause or provision in a particular context or to a
particular situation, circumstance or person, should be held unenforceable,
invalid or in violation of law by any court or other tribunal, then the
application of such clause or provision in contexts or to situations,
circumstances or persons other than that in or to which it is held
unenforceable, invalid or in violation of law shall not be affected thereby, and
the remaining clauses and provisions hereof shall nevertheless remain in full
force and effect.
-53-
22.17 Representations
---------------
Each of the Parties hereto acknowledges and agrees (i) that no
representation or promise not expressly contained in this Agreement has been
made by any other Party hereto or by any of his or its agents, employees,
representatives or attorneys; (ii) that this Agreement is not being entered
into on the basis of, or in reliance on, any promise or representation,
expressed or implied, covering the subject matter hereof, other than those
which are set forth expressly in this Agreement; and (iii) that each has had
the opportunity to be represented by counsel of its own choice in this matter,
including the negotiations which preceded the execution of this Agreement.
22.18 Force Majeure
-------------
Any Party shall be excused for failures and delays in performance
of its respective obligations under this Agreement caused by war, riots or
insurrections, laws and regulations (including, without limitation, imposition
of export restrictions or controls), strikes, floods, fires, explosions or
other catastrophes beyond the control and without the fault of such Party. This
provision shall not, however, release such Party from using its best efforts to
avoid or remove such cause and such Party shall continue performance hereunder
with the utmost dispatch whenever such causes are removed. Upon claiming any
such excuse
-54-
or delay for non-performance, such Party shall give prompt written notice
thereof to the other Party.
22.19 Expansion of Business
---------------------
The Parties contemplate that there may be additional opportunities
for mutual development of other products or areas of interest by Corporation. At
any time either Amgen or Kirin may suggest that such other opportunities be
further discussed.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their duly authorized representatives in the manner legally binding
upon them.
KIRIN BREWERY COMPANY, LIMITED, a
Japanese corporation
By /s/ Shinkichi Kubo
Shinkichi Kubo
Its Managing Director
AMGEN, a California corporation
By /s/ George B. Rathmann
George B. Rathmann
Its President
KIRIN-AMGEN, INC., a California
corporation
By
Its
-55-
EXHIBIT SCHEDULE
----------------
EXHIBIT DESCRIPTION PARAGRAPH
A Transferred Technology........................ 1.05
B Assignment and License Agreement.............. 1.05
C Development and
Supply Agreement............................ 1.09
D Articles of Incorporation..................... 2.04
E Bylaws of Corporation......................... 2.05
F Legal Conflicts Letter........................ 2.09
G Arthur Young and Company
Engagement Letter............................. 2.10
H Kirin/Kirin-Amgen, Inc
Services Agreement.......................... 8.03.6
I Amgen/Kirin-Amgen, Inc
Services Agreement.......................... 8.03.6
J Kirin/Kirin-Amgen, Inc
License Agreement........................... 8.03.7
K -- Amgen/Kirin-Amgen, Inc
License Agreement........................... 8.03.8
TRANSFERRED TECHNOLOGY
----------------------
The Transferred Technology is embodied in at least the
following documents:
(1) The ASSIGNMENT relating to U.S. Patent
Application Ser. No. 561.024, filed December 13, 1983,
entitled "Recombinant Methods and Materials Applied to
Microbial Expression of Erythropoietin", recorded in the
Patent and Trademark Office on Reel 4217, Frame 916. [And
related know-how]
(2) The ASSIGNMENT relating to U.S. Patent
Application Ser. No. 463.724, filed February 4, 1983,
entitled "ATCC HB8209 and Its Monoclonal Antibody to
Erythropoietin", recorded in the Patent and Trademark
office on Reel 4110, Frame 763. [And related know-how]
[Full Description]
EXHIBIT "A"
ASSIGNMENT AND LICENSE AGREEMENT
--------------------------------
THIS ASSIGNMENT AND LICENSE AGREEMENT ("Agreement") is made
this day of , 1984, by and between AMGEN, a California corporation
("Amgen"), in favor and for the benefit of, and with KIRIN-AMGEN, INC., a
California corporation ("Company") pursuant to to terms and conditions of that
certain Shareholders' Agreement, dated May 11, 1984, by and among Amgen, Company
and Kirin Brewery Company, Ltd., a Japanese corporation ("Shareholders'
Agreement").
RECITALS
--------
WHEREAS, Amgen, Kirin and the Company have entered into the
Shareholders' Agreement with respect to the formation of the Company to engage
in the development, manufacture, production and sale of EPO products (as defined
in the Shareholders' Agreement) for human therapeutic use in the Field of
Activity (as defined in the Shareholders' Agreement);
WHEREAS, in connection with the formation of the Company and
the issuance of certain Common Stock of the Company to Amgen under Section 351
of the Internal Revenue Code of 1954, as amended, Amgen is willing to transfer
certain technology (the "Transferred Technology", as hereinafter defined) to the
Company and license certain other technology (the "Core Technology", as
EXHIBIT "B"
hereinafter defined) to the Company for use in the Field of Activity, as
hereinafter defined, all in accordance with the Shareholders' Agreement;
NOW, THEREFORE, in partial consideration (along with cash
payable by Amgen to the Company) of the sale and issuance to Amgen of twelve
million (12,000,000) shares of Common Stock of the Company pursuant to the
Shareholders' Agreement, Amgen and the Company hereby agree as follows:
ARTICLE I
---------
TRANSFER AND LICENSE OF TECHNOLOGY
----------------------------------
1.01 Assignment of Transferred Technology. Amgen hereby transfers and
------------------------------------
assigns to the Company, perpetually and irrevocably, all of its right, title and
interest in and to the Transferred Technology, as more specifically set forth in
Schedule A attached hereto, and agrees to execute all documents necessary to
effectuate such transfer and assignment to the Company, including but not
limited to an assignment of patents and intangibles to be recorded with the
United States Patent and Trademark Office. -
1.02 License of Core Technology. Amgen hereby grants to the Company a
--------------------------
royalty-free, exclusive right and licence throughout the world under all Core
Technology, as further
-2-
defined below, solely with respect to its direct application to the Field of
Activity.
1.03 Right to Sublicense the Core Technology. Amgen also hereby grants
---------------------------------------
to the Company royalty-free the right to grant sublicenses within and limited to
the scope of the right and license granted to the Company in Section 1.02 only,
(a) to Kirin under that certain License Agreement between the Company and Kirin,
dated of even date herewith, (b) to any subsidiary of the Company, (c) to a
single manufacturer of EPO in addition to Kirin and Amgen for the account of the
Company outside of the Amgen Territory and Kirin Territory, and (d) to licensees
of the Company under patents, know-how or materials owned by the Company to the
extent such licensees require any such sublicense in order to practice the
patents or know-how or to use the materials that are the subject of the license
from the Company, provided, however, that no sublicense shall be granted under
clause (d) hereof without the prior written consent (not to be unreasonably
withheld) of Amgen. Any sublicensees of the Company shall undertake in writing
to be bound by the provisions of Sections 3.01 and 3.02 hereof to the same
extent the Company is bound. The Company shall notify Amgen of the identity of
each sublicensee to whom a sublicense is granted and provide Amgen a true and
correct copy of such sublicense. In the event that the license granted to the
Company is terminated at any time, Amgen shall have the option to terminate or
to have the Company assign
-3-
to Amgen, retroactive to such termination, any sublicenses granted hereunder by
the Company to any subsidiary of the Company. The Company shall include in all
its sublicenses granted hereunder to any subsidiary of the Company provisions
for such termination and assignment.
1.04 Limitations. No right or license is granted to the Company
-----------
hereunder except as expressly specified in Sections 1.01, 1.02 and 1.03 hereof.
ARTICLE II
----------
DEFINITIONS
-----------
2.01 Incorporation by Reference. The definitions of terms contained
--------------------------
in the Shareholders' Agreement are hereby incorporated by reference.
ARTICLE III
-----------
DISCLOSURE OF CORE TECHNOLOGY
-----------------------------
3.01 Limitation on Usage. Except as expressly authorized by this
-------------------
Agreement or by other written consent of Amgen, for the term of this Agreement
and thereafter, the Company shall not deliver, transmit or provide to any person
other than to a sublicensee under a license granted in accord in Section 1.03,
and shall not use, any of the Core Technology owned by Amgen, or
-4-
authorize, cause or aid anyone else to do so. Except as provided in Section 1.03
above, nothing in this Agreement shall be deemed to give the Company any right
or license to use or to replicate or reproduce any of the Core Technology owned
by Amgen, or to authorize, aid, or cause others so to do.
3.02 Survival. The obligation of confidentiality imposed by the
--------
foregoing Section 3.01 shall survive termination of this Agreement for any
reason whatsoever.
ARTICLE IV
----------
PATENT, COPYRIGHT AND TRADE SECRET ENFORCEMENT
----------------------------------------------
4.01 Enforcement. Amgen shall have the right to bring, defend and
-----------
maintain, and the Company shall have the right, but not the obligation, to join
in, any appropriate suit or action involving infringement of any patents or
copyrights, misappropriation of any trade secrets or interference with any Core
Technology licensed to the Company in the Field of Activity pursuant to this
Agreement. If Amgen declines to enforce any patent, trade secret or other right,
then in such event, the Company and Kirin shall each have the right, but not the
obligation to bring any such action.
-5-
ARTICLE V
---------
PATENT APPLICATIONS AND COPYRIGHT REGISTRATIONS
-----------------------------------------------
5.01 Applications. Amgen shall have the obligation of prosecuting and
------------
maintaining in force patent applications or patents and copyright registrations
or copyrights, if any, of the Core Technology, and any costs thereby incurred
shall be borne by Amgen.
ARTICLE VI
----------
DISCLAIMER OF INDEMNIFICATION
-----------------------------
6.01 Disclaimer of Warranties. AMGEN EXPRESSLY DISCLAIMS ALL
------------------------
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
TRANSFERRED TECHNOLOGY AND LICENSED TECHNOLOGY TO BE FURNISHED BY AMGEN TO THE
COMPANY HEREUNDER.
ARTICLE VII
-----------
TERM AND TERMINATION
--------------------
7.01 Term. This Agreement (including the license and rights granted
----
under Sections 1.02 and 1.03 hereof) shall come into effect as of the date
hereof and shall remain in full force
-6-
and effect until the earlier of (a) the liquidation or dissolution of the
Company, or (b) termination pursuant to Section 7.02.
7.02 Default. In the event that the Company or Amgen (the "Defaulting
-------
Party") shall (a) default in a material obligation hereunder and fail to remedy
such default within sixty (60) days after such default shall have been called to
its attention by notice from the non-breaching party, (b) become bankrupt or
insolvent, or file a petition in bankruptcy or make a general assignment for the
benefit of creditors or otherwise acknowledge insolvency, or be adjudged
bankrupt, (c) go or be placed in a process of complete liquidation other than
for an amalgamation or reconstruction, or (d) suffer the appointment of a
receiver for any any substantial portion of its business who shall not be
discharged within sixty (60) days after his appointment, then, and in any such
event, the non-breaching party, at its option, may terminate its obligations to
and the rights of the Defaulting Party under the license to the Licensed
Technology granted under this Agreement upon ten (10) days' written notice to
the Defaulting Party, which termination shall be effective as of the occurrence
of the event giving rise to the option to terminate.
7.03 Continuing Obligations. Notwithstanding the termination of a
----------------------
party's obligations to or the rights of the Defaulting Party under this
Agreement in accordance with the provisions of Section 7.01 or 7.02, the
provisions of Sections 3.01 and 3.02, this Section 7.03 and Article VIII hereof
shall
-7-
survive such termination and continue in full force and effect for an indefinite
term. Upon termination of this Agreement for any reason, and without limitation
of other remedies, the Company shall immediately return to Amgen (to the extent
such return is technically feasible) all materials relating to the Core
Technology in the possession of the Company or its subsidiaries, or of which the
Company shall have the right to regain possession or, at the sole election of
Amgen, shall destroy such material (to the extent technically feasible).
ARTICLE VIII
------------
CONSISTENCY WITH SHAREHOLDERS' AGREEMENT
----------------------------------------
8.01 Shareholders' Agreement. This assignment of the Transferred
-----------------------
Technology and license of the Licensed Technology is granted pursuant to the
Shareholders' Agreement and shall be governed by the provisions thereof to the
extent applicable.
ARTICLE IX
----------
CONSENTS AND APPROVALS
----------------------
9.01 Best Efforts. The parties hereto shall use their best efforts to
------------
obtain as soon as practicable any and all consents, approvals,-orders or
authorizations required to be obtained from any governmental authority with
respect to the provisions hereof.
-8-
ARTICLE X
---------
NOTICE
------
10.01 Company Notice. All materials to the Company under this
--------------
Agreement shall be in writing and sent to:
Kirin-Amgen, Inc.
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
Attn: Corporate Secretary
With a copy to: Musick, Peeler & Garrett
One Wilshire Boulevard, Suite 2000
Los Angeles, CA 90017
Attn: Joel S. Marcus, Esq.
10.02 Amgen Notice. All notices to Amgen under this Agreement shall
be in writing and sent to:
Amgen
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
Attn: Corporate Secretary
With a copy to: Alan C. Mendelson, Esq.
Cooley, Godward, Castro,
Huddleson & Tatum
5 Palo Alto Square
Suite 400
Palo Alto, CA 94306
10.03 Changes. The addresses given above may be changed by notice as
specified above.
10.04 Notice Deemed Given. Notices required or permitted hereunder
-------------------
and sent as specified above shall be deemed given (a) immediately upon personal
delivery, (b) one (1) busi-
-9-
ness day after notice given by telegram or telex, and (c) ten (10) business days
after the date of posting notice, sent by registered or certified mail.
ARTICLE XI
----------
MISCELLANEOUS
-------------
11.01 Entire Agreement. This Agreement, together with any other
----------------
written agreements between the parties hereto, set forth the entire agreement of
the parties with respect to the subject matter hereof and may not be modified
except by a writing signed by authorized representatives of the parties hereto.
11.02 Headings. Article and section headings in this Agreement are
--------
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
11.03 Execution in Counterparts. This Agreement may be executed in any
-------------------------
number of counterparts and by different parties hereto in separate counterparts
each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts of this Agreement taken together shall constitute
but one and the same instrument.
11.04 Force Majeure. It is agreed that each of the parties hereto is
-------------
excused from performing such acts as are required hereunder as may be prevented
by or whose purpose is
-10-
frustrated by Force Majeure. The party so affected shall give notice to the
other party in writing promptly and thereupon shall be excused from such of its
obligations hereunder as it is unable to perform on account of the Force Majeure
throughout the duration thereof plus a period of thirty (30) days.
11.05 Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of California.
11.06 Assignment on Written Consent. This Agreement may not be
-----------------------------
assigned in whole or in part by Amgen or the Company, except with the prior
written consent of the other party.
11.07 Severability. In the event any one or more of the provisions
------------
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and/or enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. In such event, such invalid provision or provisions shall be validly
reformed to as nearly approximate the intent of the parties as possible and if
unreformable, shall be severed and deleted from this Agreement.
11.08 No Waiver. No failure or delay on the part of either party in
---------
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any
-11-
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder or the remedies provided by law.
11.09 Trademarks and Tradenames. Amgen grants no rights to the
-------------------------
Company in any trademarks or tradenames of Amgen or of any of its respective
subsidiaries or affiliated companies.
11.10 Indemnity. The Company hereby (a) releases Amgen from any
---------
obligation to defend, indemnify or save the Company and its agents and employees
harmless from and (b) agrees to defend, indemnify and save Amgen harmless from
any and all cost, expenses (including attorneys' fees), liabilities, damages and
claims for any injury or death to persons or damage to or destruction of
property, or other loss, arising out of or in connection with any product made,
used or sold by the Company or the use by the Company of any Transferred or
Licensed Technology furnished pursuant to any provision hereunder.
11.11 Other Agreements. Any other provision of this Agreement
----------------
notwithstanding, nothing in this Agreement shall obligate Amgen to disclose to
the Company any information or to make available to the Company any materials in
violation of an obligation of secrecy or a limitation of use imposed by a third
party from whom such information or materials shall have been received.
IN WITNESS WHEREOF, Amgen and the Company have caused this Agreement
to be executed by their duly authorized represent-
-12-
atives in the manner legally binding on them as of the date first above written.
AMGEN, a California corporation
By
Its
KIRIN-AMGEN, INC., a California corporation
By
Its
-13-
TRANSFERRED TECHNOLOGY
Schedule "A"
DEVELOPMENT AND SUPPLY AGREEMENT
--------------------------------
THIS DEVELOPMENT AND SUPPLY AGREEMENT ("Agreement") is made this - day
of -, 1984, by and among AMGEN, a California corporation, ("Amgen"), KIRIN
BREWERY COMPANY, LTD., a Japanese corporation, ("Kirin"), and KIRIN-AMGEN, INC.,
a California corporation ("Company").
RECITALS
--------
WHEREAS, Amgen, Kirin and the Company have entered into that certain
Shareholders' Agreement, dated May 11, 1984 ("Shareholders' Agreement"), with
respect to the formation of the Company to engage in the development,
manufacture, production and sale of EPO products (as defined in the
Shareholders' Agreement) for human therapeutic use in the Field of Activity (as
defined in the Shareholders' Agreement).
WHEREAS, Amgen has assigned to the Company, perpetually and
irrevocably, certain current proprietary technology possessed by Amgen relating
specifically to EPO;
EXHIBIT "C"
WHEREAS, the Company desires to have Amgen and Kirin conduct further
development work with respect to the improvement and commercial development of
the EPO Technology, as hereinafter defined, and Amgen and Kirin desire to
conduct such development work;
WHEREAS, Amgen's and Kirin's research and development work within and
without the Development Program (as hereinafter defined) may provide certain EPO
Technology as hereinafter defined, relating to and useful in the Field of
Activity;
WHEREAS, Amgen, Kirin and the Company wish to provide for a means by
which they can jointly utilize the fruits of their activities in the Field of
Activity;
WHEREAS, the work to be conducted hereunder may require materials,
including the EPO Organisms (as hereinafter defined), which may be developed or
have previously been developed by Amgen, and Amgen is willing to furnish such
materials to the Company, the Company is willing to furnish such materials to
Kirin, and the Company and Kirin desire to receive such materials.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, IT IS HEREBY AGREED AS FOLLOWS:
-2-
ARTICLE I
DEFINITIONS
-----------
1.01 Incorporation by Reference: The definitions of terms contained in
--------------------------
the Shareholders' Agreement are hereby incorporated by reference.
1.02 Term of Support. The period beginning on the date of the
---------------
Shareholders' Agreement, among Amgen, Kirin and the Company, and ending on the
earlier of (a) the date which is ten (10) years from the date of such
Shareholders' Agreement, (b) the liquidation of the Company, or (c) the earlier
completion of the Development Program as contemplated by Article II hereof.
ARTICLE II
DEVELOPMENT PROGRAM
-------------------
2.01 Development Program.
-------------------
(a) Amgen and Kirin hereby agree to conduct on behalf of the
Company, on an accelerated and coordinated basis, development, toxicology,
dosage studies, pre-clinical studies, clinical trials and product registration
for the purpose of securing all approvals (governmental or otherwise) necessary
for the Parties to engage in the Field of Activity and manufacture and sell EPO
in their respective Territories, as defined in the Shareholders' Agreement.
During the Term of Support, Amgen and
-3-
Kirin shall each make reasonably available to the Company its technical
personnel and facilities required to perform such scientific and development
projects relating to the Field of Activity as the Company requests and as Amgen
and Kirin may agree from time to time. Amgen and Kirin may each have others
perform or assist in performing the work under the Development Program;
provided, however, that Amgen and Kirin shall cause such other parties to be
bound by all the provisions hereof as if they were parties hereto.
(b) Amgen hereby agrees to use its best efforts to complete, as
part of the Development Program, the development of commercial manufacturing
scale production of EPO in one Expression System; provided, however, that Amgen
may conduct work as part of the Development Program on the development of more
than one of such Expression Systems and shall be compensated by the Company for
all such work hereunder.
(c) Compensation for development work to be performed by Amgen
shall be paid in accordance with the provisions of-Section 2.03 hereof.
(d) Notwithstanding the foregoing, no research performed by Amgen
in developing the EPO Organisms shall be considered to be part of, or be
compensated under, the Development Program pursuant to this Agreement, unless
otherwise mutually agreed by Amgen and Kirin.
-4-
2.02 Development Plan. Upon commencement of the Development Program
----------------
(no later than thirty (30) days after the date of this Agreement), and no less
frequently than quarterly thereafter, the Parties shall meet to formulate a
detailed plan for development projects to be performed by Amgen or Kirin, or
both, during the course of the Development Program. The plan shall identify the
technical problems involved and the general outline of experiments to be carried
out, an estimate of the personnel and equipment to be contributed by each of
Amgen and Kirin, a detailed budget setting forth the total estimated costs of
each required to perform the work and, where possible, the nature of the work to
be performed by each. Upon the agreement of Amgen and Kirin to such plan, a copy
of the plan agreed to shall be made a part of this Agreement, and the
preliminary outline of such plan is attached hereto; provided, that such plan
may be modified or amended at any time by mutual agreement of the Parties. If
any Party desires, at any time, to modify the development plan with respect to
an existing project or to establish a new project to be undertaken by the
Parties under the plan, it may notify the other Parties of such desire and the
Parties will promptly meet to consider such request in good faith; provided,
however, that any such modification or amendment shall be mutually agreed upon.
Amgen and Kirin shall diligently conduct the development projects agreed upon
and shall use their best efforts to reach the goals of the development projects
-5-
agreed to. Amgen and Kirin shall each prepare and supply to the Company written
progress reports at the end of each three (3) month period. Each Party shall
consult with the other Parties from time to time on the progress of the
development projects and shall permit any other Party to visit its laboratories
to observe the development work, to the extent reasonably required to coordinate
and effectively conduct related development work. The Development Program shall
initially be conducted with respect to the Field of Activity; provided, however,
that the Parties may mutually agree upon additional activities and projects to
be carried out in the Development Program.
2.03 Expenses. The Company shall pay to Amgen and Kirin, respectively,
--------
a per hour unit amount calculated on the basis oftotal costs incurred by Amgen
and Kirin in conducting work under the Development Program plus a reasonable
profit not to exceed five percent (5%). The per hour rate shall be determined
for all research scientists and associates on an annual basis by mutual
agreement of Amgen and Kirin, and such agreed upon rate per man hour shall be
utilized by both Amgen and Kirin. For the period commencing on the date hereof
and ending December 31, 1984, the per hour rate for such research scientists and
associates shall be as set forth in the preliminary outline to be attached
hereto pursuant to Section 2.02 hereof. Thereafter, the mutually agreed upon
rate for such research scientists and associates of Amgen and Kirin shall be
determined for each year
-6-
commencing January 1, 1985 not later than the 31st day of January of each such
year. At the end of each calendar month Amgen and Kirin shall each submit a
written statement to the Company setting forth the number of man hours of work
performed by such Party during such calendar month. Upon receipt of such
statement and after-a reasonable period to allow for review thereof, the Company
shall promptly pay Amgen and Kirin an amount equal to the total costs incurred
by such Party in conducting the development projects for such month. Amgen and
Kirin shall keep correct and complete records containing all information
required for deter mination of costs to be paid hereunder for periods of not
less than three (3) years and shall permit such books and records to be
inspected and audited during reasonable business hours by a certified public
accountant selected by the Company, to the extent necessary to verify such
report. The Parties hereby acknowledge that any such work under the Development
Program to be performed by Amgen and Kirin, respectively, for the Company shall
be as independent contractors, and the Company shall not incur any direct
obligations for the remuneration or other expenses (and relevant reporting
obligations) of any employee of Amgen or Kirin by virtue of such employee's
participation in the Development Program.
2.04 Disclosure of EPO Technology.
----------------------------
(a) For purposes of advancing the Development Program, Amgen and
Kirin shall disclose to each other and the Company such of their respective
information, including that on
-7-
inventions, relative to the Field of Activity (whether or not previously
assigned or licensed to the Company by any Party hereunder and therefore already
included as part of the EPO Technology) and available prior to the undertaking
hereunder of the Development Program, as the disclosing Party in its reasonable
discretion believes will be useful in furtherance of the Development Program and
which it has the right to disclose. To further promote the purposes of the
Development Program, each Party shall actively collaborate with the other
Parties by disclosing to all other Parties on a regular and periodic basis such
technical and other information developed by such Party as may be included in
the definition of EPO Technology hereunder and the Company authorizes such
disclosure amongst the Parties hereunder without regard to the restrictions on
such disclosure which may otherwise be imposed by the License Agreements and
this Agreement. In order to further facilitate the effective commercial
development, registration, manufacture and marketing of EPO within the Field of
Activity, the Parties shall permit representatives of any other Party to inspect
its facilities and all technical reports, memoranda and other documents directly
relating to the Development Program, and to make copies of any and all such
reports, memoranda and other documents; provided, however, that the rights
hereunder shall not extend beyond the EPO Technology and shall be limited solely
to such information that has been actually used by a Party for the production
and further development of EPO. Each of Amgen and Kirin acknowledge
-8-
that any such technical and other information disclosed hereunder shall be
included in the definition of EPO Technology and agree that any such technical
and other information so received shall not otherwise be disclosed except as
permitted by this Agreement or the aforementioned License Agreements.
(b) Upon commencement of the Development Program, Amgen agrees to
supply Kirin and the Company with sufficient technical information and
assistance to (i) assess the progress of its product and process development
work during the course of the Development Program, and (ii) instruct and assist
Kirin in utilizing its rights in the EPO Technology, and the Parties shall
establish mutually agreeable development milestones which shall be reviewed no
less frequently than annually during the term of the Development Program. Any
technical information supplied by any Party to another hereunder shall remain
confidential and shall thereafter be deemed EPO Technology for purposes hereof.
2.05 Technical Assistance.
--------------------
(a) Amgen shall furnish to Kirin at Kirin's request the services
of personnel of Amgen or its agents, hereinafter in this Section 2.06 referred
to Amgen's "personnel", to give technical assistance and information for the
start-up of a manufacturing facility for EPO. Such facility shall be constructed
and said EPO shall be manufactured by Kirin with the use of EPO Technology
furnished to Kirin hereunder and the use of which is authorized hereunder. It
will be Kirin's responsibility to provide Amgen's personnel with suitable
working quarters and
-9-
adequate clerical and other assistance in order to facilitate the performance of
their services.
(b) Such service shall be available to Kirin at reasonable
locations and times and for reasonable intervals agreeable to Amgen.
(c) Amgen shall without charge and in addition to the provisions
set forth above, provide training, relating to the subject hereof, at Amgen's
plant to personnel of Kirin, at Kirin's request. Such training shall be
available to Kirin, at reasonable times, and for reasonable intervals, agreeable
to Amgen.
(d) Promptly after the date of this Agreement, Amgen and Kirin
shall each appoint an employee to administer activities and performance under
this Section 2.05 and will notify each other of the name, address and telephone
number of such employee. All requests for services under this Section 2.05 and
arrangements for providing services will be coordinated by such appointed
employees.
(e) Amgen and Kirin shall at all times retain the administrative
supervision of their respective personnel.
(f) Kirin shall pay to Amgen for the work performed pursuant to
Sections 2.04 (b) and this Section 2.05, including travel time outside of the
Continental United States, at the rate determined in accordance with the
provisions of Section 2.03 hereof. Kirin shall also reimburse Amgen for actual
-10-
expenditures for travel, living and other expenses incurred by Amgen's personnel
performing services under Section 2.04 (b) and this Section 2.05(f). Amgen shall
render to Kirin invoices for all payments to be made under this Section 2.05,
and Kirin shall make payment of all amounts so billed within thirty (30) days
after date of invoice. Any information which may be disclosed to personnel of
Kirin by Amgen's personnel in the course of their performance under this Section
2.05 shall be deemed to be EPO Technology furnished to Kirin.
(g) All of Amgen's obligations under this Section 2.05 shall
terminate effective with any termination of the rights of Kirin pursuant to
Article VI of this Agreement without affecting any of Amgen's obligations under
any other Article.
2.06 Kirin Technical Assistance. To the extent that Amgen requests and
--------------------------
Kirin supplies Amgen with technical assistance, Amgen shall pay Kirin in
accordance with the provisions of Section 2.05 (f) and any information disclosed
to personnel of Amgen by Kirin's personnel hereunder shall be deemed to be EPO
Technology furnished to Amgen.
ARTICLE III
RECORDS; CONFIDENTIALITY
------------------------
3.01 Records. Amgen and Kirin shall each keep and maintain complete
-------
and accurate records of all work done in
-11-
connection with the Development Program. All such records shall be available to
the Company at all reasonable times for examination and copying at the Company's
expense.
3.02 Confidentiality. Except to the extent expressly authorized by
---------------
this Agreement and as contemplated by the Shareholders' Agreement or by other
prior written consent of the disclosing Party, for the term of this Agreement
and thereafter, each receiving Party shall keep completely confidential and
shall not public or otherwise disclose to others and shall not use any secret or
confidential EPO Technology disclosed or provided to the receiving Party by the
disclosing or providing Party; provided, however, that each of Kirin and Amgen
shall have the right to use such EPO Technology provided by the other in course
of its participation in the Development Program. For the purposes of this
Agreement, EPO Technology shall be deemed not secret or confidential to the
extent, and only to the extent, that it:
(a) was known to the receiving Party at the time of its
disclosure and not previously subject to any obligation of
confidentiality;
(b) was generally available to the public or was otherwise part
of the public domain at the time of its disclosure;
(c) became generally available to the public or became otherwise
part of the public domain after its disclosure and other
than through
-12-
any act or omission of the receiving Party in
breach of this Agreement; or
(d) became known to the receiving Party after its disclosure (i)
from a source other than the disclosing Party (including
from independent development by the receiving Party),
(ii) other than from a third party who had an obligation to
the disclosing Party not to disclose such information to
others, and
(iii) other than under an obligation of confidentiality.
Each receiving Party may disclose any EPO Technology to the extent such
disclosure is necessary to the receiving Party to comply with laws or
regulations, or to make, use or sell under any license under such EPO Technology
from the disclosing Party or to sublicense others to do so, provided that the
Party intending to make any such disclosure shall give the other Parties
reasonable advance notice of such proposed disclosure or delivery, shall use its
best efforts to secure confidential treatment of the EPO Technology to be
disclosed and shall advise the other parties in writing of the manner in which
that was done.
3.03 Employee Assignments. Amgen and Kirin each represent that with
--------------------
respect to each of its employees and agents who is or may be engaged in work
under the Development Program,
-13-
it will use its best efforts to obtain (a) an agreement to disclose and assign
to the Company, or its nominee or nominees, without expense to the Company, all
inventions made by such employee or agent during the course of his employment or
association with the Development Program, and (b) execution, acknowledgment and
delivery by such employee or agent of all papers, including applications for
patents, that may be necessary to obtain patents for said inventions in any and
all countries and to vest title thereto in the Company (and an agreement by such
employee or agent to do all acts possible to assist the Company in establishing
and enforcing its aforementioned rights to such inventions).
ARTICLE IV
FILING AND MAINTENANCE OF PATENTS
---------------------------------
4.01 Filing and Maintenance of Patents. The Company shall, in
---------------------------------
consultation with Amgen and Kirin, file such patent applications as are
reasonably required to exploit any EPO Technology and thereafter shall use
reasonable diligence, under the circumstances, to prosecute and maintain in
force any resulting patent rights.
-14-
ARTICLE V
PATENT SUITS AND ACTIONS
------------------------
5.01 Rights of the Company. The Company shall have the right to bring,
---------------------
defend and maintain any appropriate suit or action for infringement in the
Fieldof Activity of any EPO Technology patent covering only the making, use or
sale of products in the Field of Activity. If the Company finds it necessary to
join Amgen or Kirin in such suit or action, Amgen or Kirin shall execute all
papers and perform such other acts as may be reasonably required and may, at its
option, be represented by counsel of its choice. The Company shall pay to Amgen
and Kirin their reasonable expenses (excluding attorneys' fees) in connection
with any such suit or action. Any amount recovered in any such action or suit,
whether by judgment or settlement, shall be paid to or retained entirely by the
Company.
5.02 Maintenance of Action. The rights of the Parties with respect to
---------------------
the initiation or defense of any suit or action relating to any material
infringement in the Field of Activity of any patent within the EPO Technology
covering the making, use or sale of products both within and outside the Field
of Activity shall be governed by the applicable provisions of the License
Agreements.
-15-
ARTICLE VI
TERM AND TERMINATION
--------------------
6.01 Term of Development Program. Unless sooner terminated, the
---------------------------
Development Program (including all rights and obligations of Article II hereof)
shall continue until expiration of the Term of Support.
6.02 Term of Agreement. This Agreement shall come into effect as of
-----------------
the date hereof and shall remain in full force and effect until the earlier of
(a) the liquidation or dissolution of the Company or (b) termination pursuant to
Section 6.03.
6.03 Default. In the event that a Party (the "Defaulting Party") shall
-------
(a) fail to make any payment under the License Agreement when and as due, after
notice to such defaulting Party and failure to cure within sixty (60) days of
such notice, or otherwise materially default in a material obligation hereunder
and fail to remedy such default within sixty (60) days after such default shall
have been called to its attention by notice of another Party, (b) become
bankrupt or insolvent, or file a petition in bankruptcy or make a general
assignment for the benefit of creditors or otherwise acknowledge insolvency, or
be adjudged bankrupt, (c) go or be placed in a process of complete liquidation
other than for an amalgamation or reconstruction, or (d) suffer the appointment
of a receiver for any substantial portion of its business who shall not be
discharged
-16-
within sixty (60) days after his appointment, then, and in any such event, any
other Party, at its option, may terminate its obligations to and the rights of
the Defaulting Party under this Agreement upon ten (10) days' written notice to
the Defaulting Party, which termination shall be effective as of the occurrence
of the event giving rise to the option to terminate.
6.04 Survival. Notwithstanding the termination of a Party's
--------
obligations to or the rights of the Defaulting Party or other party under this
Agreement in accordance with the provisions of Sections 6.02 or 6.03, the
provisions of Section 3.02 and Article VIII hereof shall survive such
termination and continue in full force and effect for an indefinite term.
ARTICLE VII
SUPPLY ARRANGEMENTS
-------------------
7.01 Supply of EPO Organisms. Amgen agrees to supply to the Company
-----------------------
for the ultimate use by Kirin and the Company, as requested, with sufficient
amounts of EPO required for Kirin and the Company to carry out the goals and
purposes of the Development Program. The Company agrees to pay Amgen and/or
Kirin for the EPO that is to be supplied by Amgen and Kirin, respectively,
hereunder in the manner set forth in Article II above. Amgen and Kirin shall
also be free to produce sufficient
-17-
amounts of EPO for its respective use in carrying out the goals and purposes of
the Development Program.
7.02 Delivery Specifications.
-----------------------
(a) The Company may, by letter, telex or other means, deliver to
Amgen delivery specifications providing specific information regarding EPO which
the Company is interested in obtaining. Each delivery specification shall
specify: (1) quantity; (2) requested delivery schedule; (3) packaging and
marking requirements; (4) method of shipment; (5) place of delivery and
acceptance; and (6) any other information necessary to prepare the proposal.
(b) Amgen shall, and after delivery of each such delivery
specification by the Company, furnish the Company with a written proposal
providing specific information regarding items which the Company is interested
in obtaining. Such proposal shall include: (i) unit and total price or fee for
use for items; (ii) delivery schedule; (iii) duration of the proposal; (iv)
terms and conditions regarding dissemination and use of the items; and (v) any
other information, requested by the Company and deemed essential to the proposal
by Amgen. Orders placed pursuant to a proposal are termed "Proposal Orders."
Issuance of a Proposal Order by Amgen and receipt by Amgen of written
notification of acceptance of the Proposal Order by the Company shall create a
binding agreement for furnishing the items specified therein.
-18-
(c) On Proposal orders, the charges paid by the Company for
items shall be those charges set forth in the proposal under which such order is
being placed. Amgen shall exercise reasonable efforts to provide the Company
with thirty (30) days advance notice of changes in prices and use fees for
items.
(d) Charges quoted pursuant to this Article VII will be in
United States dollars and invoices shall be payable in United States currency
within thirty (30) days of delivery.
7.03 Limitations on Use. Any EPO and EPO Organisms supplied hereunder
------------------
shall be used solely for the pursuit of the goals and purposes of Development
Program and any limitation on such usage contained in the License Agreements
shall be construed consistent herewith.
ARTICLE VIII
MISCELLANEOUS
-------------
8.01 Assignment. This Agreement may not be assigned in whole or in
----------
part by any Party, except with the prior written consent of the other Parties.
8.02 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the Parties with respect to the subject matter hereof, and supersedes
all previous negotiations, commitments and writings.
-19-
8.03 Amendment or Modification. This Agreement may not be modified
-------------------------
or amended except by a writing duly signed by the authorized representatives of
the Parties. Any condition or provision of or in any document or communication
whatsoever, other than a writing amending or modifying this Agreement in
accordance with the first sentence of this Section 8.03, shall be deemed
inapplicable to the obligations between the Parties hereto.
8.04 Severability. In the event any one or more of the provisions
------------
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and/or enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. In such event such provision or provisions shall be validly reformed to
as nearly approximate the intent of the Parties as possible and if unreformable,
shall be severed and deleted from this Agreement.
8.05 No Waiver. No failure or delay on the part of either Party in
---------
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder or provided by law.
8.06 Trademarks and Tradenames. No party grants any rights under
-------------------------
this Agreement to any other Party in any trademarks
-20-
or tradenames of such Party, or of any of their respective Subsidiaries or
affiliated companies.
8.07 Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of California.
8.08 Notices. All notices, requests, demands and other
-------
communications required or permitted to be given under this Agreement shall be
in writing and shall be mailed to the Party to whom notice is to be given, by
telex or facsimile, and confirmed by first class mail, registered or certified,
return receipt requested, postage prepaid, and properly addressed as follows (in
which case such notice shall be deemed to have been duly given on the third
(3rd) day following the date of such sending):
"Kirin" Kirin Brewery Company, Limited
26-1, Jingumae 6-Chome
Shibuya-Ko, Tokyo 150
Japan
Telex No. 242-5401 Kirin B J
Attn: General Manager of R&D Department
With a copy to: Musick, Peeler & Garrett
One Wilshire Boulevard
Suite 2000
Los Angeles, CA 90017
U.S.A.
Telex No. 701357 (MPG LAW UD)
Attn: Joel S. Marcus, Esq.
-21-
"Amgen" Amgen
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
U.S.A.
Telex No. 499-9315 (AMGEN)
Attn: Corporate Secretary
With a copy to: Cooley, Godward, Castro,
Huddleson & Tatum
One Maritime Plaza, 20th Floor
San Francisco, CA 94111 U.S.A.
Telex No. 910-372-7370 Cooley SFO
Attn: Alan C. Mendelson, Esq.
"Corporation" Kirin-Amgen, Inc.
1900 Oak Terrace Lane
Thousand Oaks, CA 91320 U.S.A.
Telex No. 499-9315 (AMGEN)
Attn: Corporate Secretary
With a copy to: Musick, Peeler & Garrett
One Wilshire Boulevard
Suite 2000
Los Angeles, CA 90017
U.S.A.
Telex No. 701357 (MPG LAW UD)
Attn: Joel S. Marcus, Esq.
Any Party by giving notice to the others in the manner provided above may change
such Party's address for purposes of this Paragraph 8.08.
8.9 Headings. Article and Section headings in this Agreement are
--------
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
-22-
8.10 Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different Parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts of this Agreement taken together shall
constitute but one and the same instrument.
8.11 No Warranties. THE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES,
-------------
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE.
8.12 Indemnity. The Company hereby (a) releases Amgen and Kirin
---------
from any obligation to defend, indemnify or save the Company and its agents and
employees harmless from and (b) agrees to defend, indemnify and save Amgen and
Kirin harmless from any and all costs, expenses (including attorneys' fees),
liabilities, damages and claims for any injury or death to persons or damage to
or destruction of property, or other loss arising out of or in connection with
any product made, used or sold by the Company or the use by the Company of any
EPO Technology or EPO Organisms furnished pursuant to any provision hereunder,
or otherwise arising out of or related to the performance of this Agreement.
8.13 Force Majeure. It is agreed that each of the Parties hereto
-------------
is excused from performing such acts as are required hereunder as may be
prevented by or whose purpose is frustrated by Force Majeure. The Party so
affected shall give notice to the other Party in writing promptly and thereupon
shall
-23-
be excused from such of its obligations hereunder as it is unable to perform on
account of the Force Majeure throughout the duration there-of plus a period of
thirty (30) days.
8.14 Other Agreements. Any other provision of this Agreement
----------------
notwithstanding, nothing in this Agreement shall obligate Kirin or Amgen to
disclose to the Company any information or to make available to the Company any
materials in violation of an obligation of secrecy or a limitation of use
imposed by a third party from whom such information or materials shall have been
received.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives in the manner legally binding
upon them as of the date first above written.
AMGEN
By
President
KIRIN BREWERY COMPANY, LTD.
By
KIRIN-AMGEN, INC.
By
-24-
OUTLINE OF
----------
PRELIMINARY R & D PLAN FOR EPO
------------------------------
1. A reliable RIA will be established to be used for, but not
limited to, preclinical and clinical evaluation of EPO levels in patient's
serum. Estimated cost is $200,000. Period 1984.
2. A sufficient quantity of EPO will be purified from urine. This
EPO will be used as a standard for RIA, for iodination for the RIA and as
reference material for comparison with EPO produced by recombinant DNA
techniques. Estimated cost is $200,000. Period 1984.
3. Recombinant EPO will be prepared from mammalian cells, E.coli
and yeast. The biological properties of these three preparations will be
compared with urinary EPO to determine which system will be used to develop EPO
as a therapeutic. Fermentation and purification costs for materials for
evaluation will be paid for by the Corporation. Estimated cost is $300,000.
Period 1984.
4. Properties of recombinant EPO will be compared with natural
material to determine what criteria should be used for specifications of the
recombinant therapeutic material. Part of this work will be paid for by the
Corporation. Estimated cost is $100,000. Period 1984.
SCHEDULE "A"
5. Research to be carried out to determine feasibility of using
antibody affinity columns for EPO purification.
Amgen will supply antibody, Kirin will supply urinary EPO and
serum, if necessary. Joint venture will pay for labor. Estimated cost is
$100,000. Period 1984.
6. Process development for fermentation and purification to
commercial levels will be carried out for recombinant EPO produced by E.coli.
Estimated cost is $1,000,000. The estimated cost will be modified if yeast or
mammalian cells are used as the production system. Period 1984-1985.
7. Studies to be carried out to determine the formulation of the
final product. This will include studies on product stability, method of
administration, etc. Estimated cost is $600,000. Period 1984-1985.
8. Pre-clinical tests including planning, production of samples,
toxicological test and pharmacological tests. Estimated cost is $2,000,000.
Period 1984-1986.
9. Clinical trials including planning, filing IND, production of
samples, clinical trials, organization of clinical doctors and submission of New
Drug Application. Estimated cost is $11,500,000. Period 1984-1987.
-2-
10. Phase IV study will be carried out. Cost of this study will
be paid for from proceeds of commerical sales. No cost to joint venture.
-3-
ARTICLES OF INCORPORATION
OF
KIRIN-AMGEN, INC.
I.
The name of this corporation is KIRIN-AMGEN, INC.
II.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
III.
The name and address in the State of California of this
corporation's initial agent for service of process is:
Joel S. Marcus, Esq.
Musick, Peeler & Garrett
One Wilshire Boulevard
Suite 2000
Los Angeles, California 90017
IV.
The corporation is authorized to issue two classes of shares: no
par value Class A Common Stock and no par value Class B Common Stock designated
"Class A Common Stock" and "Class B Common Stock," respectively. The total
number of shares of Class A Common Stock which this corporation is authorized to
issue is twenty-four million (24,000,000) shares. The total number of shares of
Class B Common Stock which this corporation is authorized to issue is twelve
million (12,000,000) shares.
V.
The rights, preferences, privileges and restrictions of Class A
Common Stock and Class B Common Stock shall be equal and identical in all
respects except that:
EXHIBIT "D"
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of this corporation, the holder of the issued and
outstanding shares of Class B Common Stock shall be entitled to receive from the
assets of the corporation, cash equal to one dollar (US $1.00) per share, plus
three-quarters (3/4) of the aggregate interest earned by the corporation on such
amount from the date of purchase of such shares to the date of liquidation.
(b) The shares of Class B Common Stock shall be converted into
shares of Class A Common Stock on a share-forshare basis when the corporation
produces biologically active EPO at such levels as are agreed upon by the
holders of all of the shares of Class A Common Stock and Class B Common Stock.
VI.
(a) Any of the following actions shall require the prior approval
of the holders of all of the shares of Class A Common Stock and Class B Common
Stock, notwithstanding that applicable law would otherwise permit such action
without such approval:
(i) The entry by the corporation into any business outside
the areas of development, manufacture, production and worldwide
commercial sale of EPO and EPO pharmaceuticals for human therapeutic
use;
(ii) Any lending or borrowing of money by the corporation;
(iii) The acquisition, mortgage, pledge, sale, assignment,
transfer, or other disposition of any property of the corporation
having a fair market value in excess of one hundred thousand dollars
($100,000) by the corporation (other than in connection with the sale
of products and services in the ordinary course of its business) or of
any interest (regardless of value) in the legal or beneficial ownership
of any other corporation or enterprise;
(iv) The adoption of a business plan, annual capital,
operating and development plans, and budgets, including any material
modification thereof;
(v) Any capital expenditure in excess of one hundred
thousand dollars ($100,000).
(b) All actions of the Board of Directors shall require the
affirmative vote of a majority of the authorized
-2-
number of Directors, notwithstanding that applicable law would otherwise permit
such action without such approval.
Dated: May 11, 1984
Signature
---------
/s/ Joel S. Marcus
Incorporator
I hereby declare that I am the person who executed the
foregoing Articles of Incorporation, which execution is my act and deed.
Signature
----------
/s/ Joel S. Marcus
-3-
BYLAWS
OF
KIRIN-AMGEN, INC.
EXHIBIT "E"
BYLAWS OF KIRIN-AMGEN, INC.
Table of Contents
Page
----
ARTICLE I
OFFICES
Section 1. Principal Office........................................................................... 1
Section 2. Other Offices.............................................................................. 1
ARTICLE II
CORPORATE SEAL
Section 3. Corporate Seal............................................................................. 2
ARTICLE III
SHAREHOLDERS' MEETINGS AND VOTING RIGHTS
Section 4. Place of Meetings.......................................................................... 2
Section 5. Annual Meetings............................................................................ 2
Section 6. Postponement of Annual Meeting............................................................. 3
Section 7. Special Meetings........................................................................... 3
Section 8. Notice of Meetings......................................................................... 4
Section 9. Manner of Giving Notice.................................................................... 7
Section 10. Quorum and Transaction of Business......................................................... 8
Section 11. Adjournment and Notice of
Adjourned Meetings....................................................................... 9
Section 12. Waiver of Notice, Consent to
Meeting or Approval of Minutes........................................................... 10
Section 13. Action by Written Consent
Without a Meeting........................................................................ 11
Section 14. Voting..................................................................................... 13
Section 15. Persons Entitled to Vote or Consent........................................................ 14
Section 16. Proxies.................................................................................... 16
Section 17. Inspectors of Election..................................................................... 16
17
ARTICLE IV
BOARD OF DIRECTORS
Section 18. Powers .................................................................................... 18
Section 19. Number of Directors........................................................................ 19
Section 20. Election of Directors, Term,
Qualifications........................................................................... 19
Section 21. Resignation................................................................................ 20
Section 22. Removal.................................................................................... 20
Section 23. Vacancies.................................................................................. 21
-i-
Page
----
Section 24. Regular Meetings.................................................................................. 22
Section 25. Participation by Telephone........................................................................ 23
Section 26. Special Meetings.................................................................................. 23
Section 27. Notice of Meetings................................................................................ 23
Section 28. Place of Meetings................................................................................. 24
Section 29. Action by Written Consent
Without a Meeting.............................................................................. 24
Section 30. Quorum and Transaction of Business................................................................ 25
Section 31. Adjournment....................................................................................... 25
Section 32. Organization...................................................................................... 26
Section 33. Compensation...................................................................................... 26
Section 34. Committees........................................................................................ 26
ARTICLE V
OFFICERS
Section 35. Officers.......................................................................................... 27
Section 36. Appointment....................................................................................... 27
Section 37. Inability to Act.................................................................................. 27
Section 38. Resignations...................................................................................... 28
Section 39. Removal........................................................................................... 28
Section 40. Vacancies......................................................................................... 29
Section 41. Chairman of the Board............................................................................. 29
Section 42. President......................................................................................... 29
Section 43. Vice Presidents................................................................................... 30
Section 44. Secretary......................................................................................... 31
Section 45. Chief Financial Officer........................................................................... 32
Section 46. Compensation...................................................................................... 34
ARTICLE VI
CONTRACTS, BANK ACCOUNTS,
CHECKS AND DRAFTS
Section 47. Execution of Contracts and Other
Instruments.................................................................................... 35
Section 48. Bank Accounts..................................................................................... 35
Section 49. Checks, Drafts, Etc............................................................................... 36
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 50. Certificate for Shares............................................................................ 37
Section 51. Transfer on the Books............................................................................. 37
Section 52. Lost, Destroyed and Stolen Certificates........................................................... 38
Section 53. Issuance, Transfer and
Registration of Shares......................................................................... 39
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Page
----
ARTICLE VIII
INSPECTION OF CORPORATE RECORDS
Section 54. Inspection by Directors.......................................................................... 40
Section 55. Inspection by Shareholders....................................................................... 40
Section 56. Written Form..................................................................................... 42
ARTICLE IX
MISCELLANEOUS
Section 57. Fiscal Year...................................................................................... 43
Section 58. Annual Report.................................................................................... 43
Section 59. Record Date...................................................................................... 43
Section 60. Construction and Definition...................................................................... 45
ARTICLE X
INDEMNIFICATION
Section 61. Indemnification of Directors, Officers,
Employees and Other Agents.................................................................... 45
ARTICLE XI
AMENDMENTS
Section 62. Amendments....................................................................................... 51
-iii-
BYLAWS
OF
KIRIN-AMGEN, INC._
-------------------
(A California Corporation)
ARTICLE I
Offices
--------
Section 1. Principal Office. The principal executive office of the
-----------------
corporation shall be located at such place as the Board of Directors may from
time to time authorize. If the principal executive office is located outside
this state, and the corporation has one or more business offices in this state,
the Board of Directors shall fix and designate a principal business office in
the State of California.
Section 2. Other Offices. Additional offices of the corporation shall
--------------
be located at such place or places, within or outside the State of California,
as the Board of Directors may from time to time authorize.
ARTICLE II
Corporate Seal
--------------
Section 3. Corporate Seal. If the Board of Directors adopts a
--------------
corporate seal such seal shall have inscribed thereon the name of the
corporation and the state and date of its incorporation. If and when a seal is
adopted by the Board of Directors, such seal may be engraved, lithographed,
printed, stamped, impressed upon, or affixed to any contract, conveyance,
certificate for shares, or other instrument executed by the corporation.
ARTICLE III
Shareholders' Meetings and Voting Rights
----------------------------------------
Section 4. Place of Meetings. Meetings of shareholders shall be held
-----------------
at the principal executive office of the corporation, or at any other place,
within or outside the State of California, which may be fixed either by the
Board of Directors or by the written consent of all persons entitled to vote at
such meeting, given either before or after the meeting and filed with the
Secretary of the Corporation.
Section 5. Annual Meetings. The annual meeting of the shareholders of
---------------
the corporation shall be held at the hour of 10
-2-
o'clock a.m. California time, on the fourth Tuesday of March in each year if
such date is not a legal holiday observed by the corporation at its principal
executive office, and if it is such a legal holiday, then on the next succeeding
full business day at the same time. At such annual meeting directors shall be
elected and any other business may be transacted which may properly come before
the meeting.
Section 6. Postponement of Annual Meeting. The Board of Directors and
------------------------------
the President shall each have authority to call at an earlier date and/or time,
or to postpone to a later date and/or time, the annual meeting of shareholders.
Section 7. Special Meetings.
----------------
(a) Special meetings of the shareholders, for any purpose or
purposes, may be called by the Board of Directors, the Chairman of the Board of
Directors, the President, or the holders of shares entitled to cast not less
than fifty percent (50%) of the votes at the meeting, or may be called as
otherwise provided for in the Articles of Incorporation.
(b) Upon written request to the Chairman of the Board of
Directors, the President, any vice president or the Secretary of the corporation
by any person or persons (other than the Board
-3-
of Directors) entitled to call a special meeting of the shareholders, such
officer forthwith shall cause notice to be given to the shareholders entitled to
vote, that a meeting will be held at a time requested by the person or persons
calling the meeting, such time to be not less than thirty-five (35) nor more
than sixty (60) days after receipt of such request. If such notice is not given
within twenty (20) days after receipt of such request, the person or persons
calling the meeting may give notice thereof in the manner provided by law or in
these bylaws. Nothing contained in this Section 7 shall be construed as
limiting, fixing or affecting the time or date when a meeting of shareholders
called by action of the Board of Directors may be held.
Section 8. Notice of Meetings. Except as otherwise may be required by
------------------
law or by the Articles of Incorporation and subject to subsection 7(b) above,
written notice of each meeting of shareholders shall be given to each
shareholder entitled to vote at that meeting (see Section 15 below), by the
Secretary, assistant secretary or other person charged with that duty, not less
than ten (10) days before such meeting.
Notice of any meeting of shareholders shall state the date,
place and hour of the meeting and,
-4-
(a) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted at such
meeting;
(b) in the case of an annual meeting, the general nature of matters
which the Board of Directors, at the time the notice is given, intends to
present for action by the shareholders;
(c) in the case of any meeting at which directors are to be elected,
the names of the nominees intended at the time of the notice to be presented by
management for election; and
(d) in the case of any meeting, if action is to be taken on any of the
following proposals, the general nature of such proposal:
(1) a proposal to approve a transaction within the provisions of
California Corporations Code, Section 310 (relating to certain transactions in
which a director has an interest);
(2) a proposal to approve a transaction within the provisions of
California Corporations Code, Section 902
-5-
(relating to amending the Articles of Incorporation of the corporation);
(3) a proposal to approve a transaction within the
provisions of California Corporations Code, Sections 181 and 1201 (relating to
reorganization);
(4) a proposal to approve a transaction within the
provisions of California Corporations Code, Section 1900 (winding up and
dissolution);
(5) a proposal to approve a plan of distribution
within the provisions of California Corporations Code, Section 2007 (relating to
certain plans providing for distribution not in accordance with the liquidation
rights of preferred shares, if any).
At a special meeting, notice of which has been given in
accordance with this Section, action may not be taken with respect to business,
the general nature of which has not been stated in such notice. At an annual
meeting, action may be taken with respect to business stated in the notice of
such meeting, given in accordance with this Section, and, subject to subsection
8(d) above,with respect to any other business as may properly come before the
meeting.
-6-
Section 9. Manner of Giving Notice. Notice of any meeting of
-----------------------
shareholders shall be given either personally or by firstclass mail, or
telegraphic or other written communication, addressed to the shareholder at the
address of that shareholder appearing on the books of the corporation or given
by the shareholder to the corporation for the purpose of notice. If no such
address appears on the corporation's books or is given, notice shall be deemed
to have been given if sent to that shareholder by first-class mail or
telegraphic or other written communication to the corporation's principal
executive office, or if published at least once in a newspaper of general
circulation in the county where that office is located. Notice shall be deemed
to have been given at the time when delivered personally or deposited in the
mail or sent by telegram or other means of written communication.
If any notice addressed to a shareholder at the address of
that shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at that address, all future notices shall be deemed to have been duly given
without further mailing if these shall be available to the shareholder on
written demand by the shareholder at the principal
-7-
executive office of the corporation for a period of one year from the date of
the giving of the notice.
Section 10. Quorum and Transaction of Business.
----------------------------------
(a) At any meeting of the shareholders, a majority of the
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum. If a quorum is present, the affirmative vote of the majority of shares
represented at the meeting and entitled to vote on any matter shall be the act
of the shareholders, unless the vote of a greater number or voting by classes is
required by law or by the Articles of Incorporation, and except as provided in
subsection (b) below.
(b) The shareholders present at a duly called or held meeting
of the shareholders at which a quorum is present may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, provided that any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
(c) In the absence of a quorum, no business other than
adjournment may be transacted, except as described in subsection (b) above.
-8-
Section 11. Adjournment and Notice of Adjourned Meetings. Any meeting
--------------------------------------------
of shareholders may be adjourned from time to time, whether or not a quorum is
present, by the affirmative vote of a majority of shares represented at such
meeting either in person or by proxy and entitled to vote at such meeting.
In the event any meeting is adjourned, it shall not be
necessary to give notice of the time and place of such adjourned meeting
pursuant to Sections 8 and 9 of these bylaws; provided that if any of the
following three events occur, such notice must be given:
(1) announcement of the adjourned, meeting's time and place
is not made at the original meeting which it continues or
(2) such meeting is adjourned for more than forty-five (45)
days from the date set for the original meeting or
(3) a new record date is fixed for the adjourned meeting.
At the adjourned meeting, the corporation may transact any
business which might have been transacted at the original meeting.
-9-
Section 12. Waiver of Notice, Consent to Meeting or Approval of
---------------------------------------------------
Minutes.
- -------
(a) Subject to subsection (b) of this Section, the
transactions of any meeting of shareholders, however called and noticed, and
wherever held, shall be as valid as though made at a meeting duly held after
regular call and notice, if a quorum is present either in person or by proxy,
and if, either before or after the meeting, each of the persons entitled to vote
but not present in person or by proxy signs a written waiver of notice or a
consent to holding of the meeting or an approval of the minutes thereof.
(b) A waiver of notice, consent to the holding of a meeting
or approval of the minutes thereof need not specify the business to be
transacted or transacted at nor the purpose of the meeting; provided that in the
case of proposals described in subsection (d) of Section 8 of these bylaws, the
general nature of such proposals must be described in any such waiver of notice
and such proposals can only be approved by waiver of notice, not by consent to
holding of the meeting or approval of the minutes.
(c) All waivers, consents and approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
-10-
(d) A person's attendance at a meeting shall constitute
waiver of notice of and presence at such meeting, except when such person
objects at the beginning of the meeting to transaction of any business because
the meeting is not lawfully called or convened and except that attendance at a
meeting is not a waiver of any right to object to the consideration of matters
which are required by law or these bylaws to be in such notice (including those
matters described in subsection (d) of Section 8 of these bylaws), but are not
so included if such person expressly objects to consideration of such matter or
matters at any time during the meeting.
Section 13. Action by Written Consent Without a Meeting. Any action
-------------------------------------------
which may be taken at any meeting of shareholders may be taken without a meeting
and without prior notice if written consents setting forth the action so taken
are signed by the holders of the outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted.
Directors may not be elected by written consent except by
unanimous written consent of all shares entitled to vote for the election of
directors; provided that any vacancy on the Board of Directors (other than a
vacancy created by removal) which has
-11-
not been filled by the board of directors may be filled by the written consent
of a majority of outstanding shares entitled to vote for the election of
directors.
Any written consent may be revoked pursuant to California
Corporations Code Section 603 (c) prior to the time that written consents of the
number of shares required to authorize the proposed action have been filed with
the Secretary. Such revocation must be in writing and will be effective upon its
receipt by the Secretary.
If the consents of all shareholders entitled to vote have not
been solicited in writing, and if the unanimous written consent of all such
shareholders shall not have been received, the Secretary shall give prompt
notice of any corporate action approved by the shareholders without a meeting to
those shareholders entitled to vote on such matters who have not consented
thereto in writing. This notice shall be given in the manner specified in
Section 8 of these bylaws. In the case of approval of (i) a transaction within
the provisions of California Corporations Code, Section 310 (relating to certain
transactions in which a director has an interest), (ii) a transaction within the
provisions of California Corporations Code, Section 317 (relating to
indemnification of agents of the corporation), (iii) a transaction within the
provisions of California Corporations Code,
-12-
Sections 181 and 1201 (relating to reorganization), and (iv) a plan of
distribution within the provisions of California Corporations Code, Section 2007
(relating to certain plans providing for distribution not in accordance with the
liquidation rights of preferred shares, if any), the notice shall be given at
least ten (10) days before the consummation of any action authorized by that
approval.
Section 14. Voting. Voting at any meeting of shareholders need not be
------
by ballot; provided, however, that elections for directors must be by ballot if
balloting is demanded by a shareholder at the meeting and before the voting
begins.
Every person entitled to vote at an election for directors may
cumulate the votes to which such person is entitled, i.e., such person may cast
a total number of votes equal to the number of directors to be elected
multiplied by the number of votes to which such person's shares are entitled,and
may cast said total number of votes for one or more candidates in such
propertions as such person thinks fit; provided, however, no shareholder shall
be entitled to so cumulate such shareholder's votes unless the candidates for
which such shareholder is voting have been placed in nomination prior to the
voting and a shareholder has given notice at the meeting, prior to the vote, of
an intention to cumulate votes. In any election of directors, the
-13-
candidates receiving the highest number of votes, up to the number of directors
to be elected, are elected.
Except as may be otherwise provided in the Articles of
Incorporation or by law, and subject to the foregoing provisions regarding the
cumulation of votes, each shareholder shall be entitled to one vote for each
share held.
Any shareholder may vote part of such shareholder's shares in
favor of a proposal and refrain from voting the remaining shares or vote them
against the proposal, other than elections to office, but, if the shareholder
fails to specify the number of shares such shareholder is voting affirmatively,
it will be conclusively presumed that the shareholder's approving vote is with
respect to all shares such shareholder is entitled to vote.
No shareholder approval, other than unanimous approval of
those entitled to vote, will be valid as to proposals described in subsection
8(d) of these bylaws unless the general nature of such business was stated in
the notice of meeting or in any written waiver of notice.
Section 15. Persons Entitled to Vote or Consent. The Board of
-----------------------------------
Directors may fix a record date pursuant to Section 59 of
-14-
these bylaws to determine which shareholders are entitled to notice of and to
vote at a meeting or consent to corporate actions, as provided in Sections 13
and 14 of these bylaws. Only persons in whose name shares otherwise entitled to
vote stand on the stock records of the corporation on such date shall be
entitled to vote or consent.
If no record date is fixed:
(1) The record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day notice is given or, if
notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held;
(2) The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors has been taken, shall be the day on which the
first written consent is given;
(3) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating
-15-
thereto, or the sixtieth (60th) day prior to the date of such other action,
whichever is later.
A determination of shareholders of record entitled to notice
of or to vote at a meeting of shareholders shall apply to any adjournment of the
meeting unless the Board of Directors fixes a new record date for the adjourned
meeting; provided, however, that the Board of Directors shall fix a new record
date if the meeting is adjourned for more than forty-five (45) days from the
date set for the original meeting.
Shares of the corporation held by its subsidiary or
subsidiaries (as defined in California Corporations Code, Section 189(b)) are
not entitled to vote in any matter.
Section 16. Proxies. Every person entitled to vote or execute consents
-------
may do so either in person or by one or more agents authorized to act by a
written proxy executed by the person or such person's duly authorized agent and
filed with the Secretary of the corporation; provided that no such proxy shall
be valid after the expiration of eleven (11) months from the date of its
execution unless otherwise provided in the proxy. The manner of execution,
suspension, revocation, exercise and effect of proxies is governed by law.
-16-
Section 17. Inspectors of Election. Before any meeting of
----------------------
shareholders, the Board of Directors may appoint any persons, other than
nominees for office, to act as inspectors of election are so appointed, the
chairman of the meeting may, and on the request of any shareholder or a
shareholder's proxy shall, appoint inspectors of election at the meeting. The
number of inspectors shall be either one (1) or three (3). If inspectors are
appointed at a meeting on the request of one or more shareholders or proxies,
the majority of shares represented in person or proxy shall determine whether
one (1) or three (3) inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, the chairman of the
meeting may, and upon the request of any shareholder of a shareholder's proxy
shall, appoint a person to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting
power of each, the shares represented at the meeting, the existence of a quorum,
and the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots, or consents;
-17-
(c) Hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the
election or vote within fairness to all shareholders.
ARTICLE IV
Board of Directors
------------------
Section 18. Powers. Subject to the provisions of law or any
------
limitations in the Articles of Incorporation or these bylaws, as to action
required to be approved by the shareholders or by the outstanding shares, the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised, by or under the direction of the Board of Directors.
The Board of Directors may delegate the management of the day-to-day operation
of the business of the corporation to a management company or other person,
provided that the business and affairs of the corporation shall be managed and
all corporate powers
-18-
shall be exercised under the ultimate direction of the Board of Directors.
Section 19. Number of Directors. The authorized number of directors of
-------------------
the corporation shall be six (6) until changed by a duly adopted amendment to
these bylaws, provided however, in the event of a default in the payment of any
additional capital contribution, as described in Paragraph 2.15 of the
Shareholders Agreement, dated as of May 11, 1984, among Kirin Brewery Co., Ltd.,
Amgen and this corporation, the authorized number of members of the Board of
Directors shall be increased to seven (7) and four (4) of such members shall be
nominees of the nondefaulting party. The number of members of the Board of
Directors cannot be decreased or otherwise increased without the mutual written
consent of Kirin Brewery Co., Ltd. and Amgen.
Section 20. Election of Directors, Term, Qualifications. The directors
-------------------------------------------
shall be elected at each annual meeting of shareholders to hold office until the
next annual meeting. Except as otherwise provided by law or by the Articles of
Incorporation, each director; including a director elected or appointed to fill
a vacancy, shall hold office either until the expiration of the term for which
elected or appointed and until a successor has been elected and qualified, or
until his death, resignation or removal. Directors need not be shareholders of
the corporation.
-19-
So long as the authorized number of directors shall be six
(6), the Board of Directors shall be composed at all times of persons qualified
as follows:
(a) Three (3) directors must be nominees of Kirin Brewery
Co., Ltd., a Japanese corporation.
(b) Three (3) directors must be nominees of Amgen, a
California corporation.
Section 21. Resignation. Any director of the corporation may resign
-----------
effective upon giving written notice to the Chairman of the Board, the
President, the Secretary or the Board of Directors of the corporation, unless
the notice specifies a later time for the effectiveness of such resignation. If
the resignation specifies effectiveness at a future time, a successor may be
elected pursuant to Section 23 of these bylaws to take office on the date that
the resignation becomes effective.
Section 22. Removal. The Board of Directors may declare vacant the
-------
office of a director who has been declared of unsound mind by an order of court
or who has been convicted of a felony.
Except as otherwise provided by law or by the Articles of
Incorporation, the entire Board of Directors or any individual
-20-
director may be removed from office without cause by the affirmative vote of a
majority of the outstanding shares entitled to vote on such removal; provided,
however, that unless the entire Board is removed, no individual director may be
removed when the votes cast against such director's removal, or not consenting
in writing to such removal, would be sufficient to elect that director if voted
cumulatively at an election at which the same total number of votes cast were
cast (or, if such action is taken by written consent, all shares entitled to
vote were voted) and the entire number of directors authorized at the time of
such director's most recent election were then being elected.
Section 23. Vacancies. A vacancy or vacancies on the Board of
---------
Directors shall be deemed to exist in case of the death, resignation or removal
of any director, or upon increase in the authorized number of directors or if
shareholders fail to elect the full authorized number of directors at an annual
meeting of shareholders or if, for whatever reason, there are fewer directors on
the Board of Directors, than the full number authorized. Such vacancy or
vacancies, other than a vacancy created by the removal of a director, may be
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director. A vacancy created by the removal of a director may
be filled only by the affirmative vote of a majority of the shares represented
and voting at a duly held meeting at which a quorum
-21-
is present (which shares voting affirmatively also constitute at least a
majority of the required quorum) or by the written consent of shareholders
pursuant to Section 13 hereinabove. Except as otherwise provided by the Articles
of Incorporation, the shareholders may elect a director at any time to fill any
vacancy not filled by the directors. Any such election by written consent, other
than to fill a vacancy created by removal, requires the consent of a majority of
the outstanding shares entitled to vote. Any such election by written consent to
fill a vacancy created by removal requires the consent of all of the outstanding
shares entitled to vote.
If, after the filling of any vacancy by the directors, the
directors then in office who have been elected by the shareholders constitute
less than a majority of the directors then in office, any holder or holders of
an aggregate of five percent (5%) or more of the shares outstanding at that time
and having the right to vote for such directors may call a special meeting of
shareholders to be held to elect the entire Board of Directors. The term of
office of any director shall terminate upon such election of a successor.
Section 24. Regular Meetings. Immediately after each annual meeting of
----------------
shareholders, and at such place fixed by the Board of Directors, or if no such
place is fixed at the place of
-22-
the annual meeting, the Board of Directors shall hold a regular meeting for the
purposes of organization, the appointment of officers and the transaction of
other business. other regular meetings of the Board of Directors shall be held
at such times, places and dates as fixed in these bylaws or by the Board of
Directors; provided, however, that if the date for such a meeting falls on a
legal holiday, then the meeting shall be held at the same time on the next
succeeding full business day. Regular meetings of the Board of Directors held
pursuant to this Section 24 may be held without notice.
Section 25. Participation by Telephone. Members of the Board of
--------------------------
Directors may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. Such participation constitutes presence in person
at such meeting.
Section 26. Special Meetings. Special meetings of the Board of
----------------
Directors for any purpose may be called by the Chairman of the Board or the
President or any vice president or the Secretary of the corporation or any two
(2) directors.
Section 27. Notice of Meetings. Notice of the date, time and place of
------------------
all meetings of the Board of Directors, other than
-23-
regular meetings held pursuant to Section 24 above shall be delivered
personally, orally or in writing, or by telephone or telegraph to each director,
at least forty-eight (48) hours before the meeting, or sent in writing to each
director by first-class mail, charges prepaid, at least four (4) days before the
meeting. Such notice may be given by the Secretary of the corporation or by the
person or persons who called a meeting. Such notice need not specify the purpose
of the meeting. Notice of any meeting of the Board of Directors need not be
given to any director who signs a waiver of notice of such meeting, or a consent
to holding the meeting or an approval of the minutes thereof, either before or
after the meeting, or who attends the meeting without protesting prior thereto
or at its commencement such director's lack of notice. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Section 28. Place of Meetings. Meetings of the Board of Directors may
-----------------
be held at any place within or without the state which has been designated in
the notice of the meeting or, if not stated in the notice or there is no notice,
designated in the bylaws or by resolution of the Board of Directors.
Section 29. Action by Written Consent Without a Meeting. Any action
-------------------------------------------
required or permitted to be taken by the Board of
-24-
Directors may be taken without a meeting, if all members of the Board of
Directors individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Board of Directors. Such action by written consent shall have the same
force and effect as a unanimous vote of such directors.
Section 30. Quorum and Transaction of Business. A majority of the
----------------------------------
authorized number of directors shall constitute a quorum for the transaction of
business. Every act or decision done or made by a majority of the authorized
number of directors of the corporation at a meeting duly held at which a quorum
is present shall be the act of the Board of Directors, unless the law, the
Articles of Incorporation or these bylaws specifically require a greater number.
A meeting at which a quorum is initially present may continue to transact
business, notwithstanding withdrawal of directors, if any action taken is
approved by at least a majority of the number of directors constituting a quorum
for such meeting. In the absence of a quorum at any meeting of the Board of
Directors, a majority of the directors present may adjourn the meeting, as
provided in Section 31 of these bylaws.
Section 31. Adjournment. Any meeting of the Board of Directors,
-----------
whether or not a quorum is present, may be adjourned to another time and place
by the affirmative vote of a majority
-25-
of the directors present. If the meeting is adjourned for more than twenty-four
(24) hours, notice of such adjournment to another time or place shall be given
prior to the time of the adjourned meeting to the directors who were not present
at the time of the adjournment.
Section 32. Organization. The Chairman of the Board shall preside at
------------
every meeting of the Board of Directors, if present. If there is no Chairman of
the Board or if the Chairman is not present, a Chairman chosen by a majority of
the directors present shall act as chairman. The Secretary of the Corporation
or, in the absence of the Secretary, any person appointed by the Chairman shall
act as secretary of the meeting.
Section 33. Compensation. Directors and members of committees may
------------
receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by the Board of Directors.
Section 34. Committees. Unless otherwise unanimously approved by the
----------
Board of Directors, there shall be no committees of the Board.
-26-
ARTICLE V
Officers
--------
Section 35. Officers. The corporation shall have a Chairman of the
--------
Board and a President, Vice President - Amgen, Vice President - Kirin, a
Secretary, a Chief Financial Officer and such other officers with such titles
and duties as the Board of Directors may determine. Any two or more offices may
be held by the same person. The Chairman of the Board, the Vice President -
Japan, the Chief Financial Officer and Assistant Secretary shall at all times be
nominees of Kirin Brewery Co. , Ltd. The President, Vice President - USA and the
Secretary be shall at all times be nominees of Amgen.
Section 36. Appointment. All officers shall be chosen and appointed by
-----------
the Board of Directors; provided, however, the Board of Directors may empower
the chief executive officer of the corporation to appoint such officers, other
than Chairman of the Board, President, Secretary or Chief Financial Officer, as
the business of the corporation may require. All officers shall serve at the
pleasure of the Board of Directors, subject to the rights, if any, of an officer
under a contract of employment.
Section 37. Inability to Act. In the case of absence or inability to
----------------
act of any officer of the corporation or of any
-27-
person authorized by these bylaws to act in such officer's place, the Board of
Directors may from time to time delegate the powers or duties of such officer to
any other officer, or any director or other person whom it may select, for such
period of time as the Board of Directors deems necessary.
Section 38. Resignations. Any officer may resign at any time upon
------------
written notice to the corporation, without prejudice to the rights, if any, of
the corporation under any contract to which such officer is a party. Such
resignation shall be effective upon its receipt by the Chairman of the Board,
the President, the Secretary or the Board of Directors, unless a different time
is specified in the notice for effectiveness of such resignation. The acceptance
of any such resignation shall not be necessary to make it effective unless
otherwise specified in such notice.
Section 39. Removal. Any officer may be removed from office at any
-------
time, with or without cause, but subject to the rights, if any, of such officer
under any contract of employment, by the Board of Directors or by any committee
to whom such power of removal has been duly delegated, or, with regard to any
officer who has been appointed by the chief executive officer pursuant to
Section 36 above, by the chief executive officer or
-28-
any other officer upon whom such power of removal may be conferred by the Board
of Directors.
Section 40. Vacancies. A vacancy occurring in any office for any cause
---------
may be filled by the Board of Directors, in the manner prescribed by this
Article of the bylaws for initial appointment to such office.
Section 41. Chairman of the Board. The Chairman of the Board, if there
---------------------
be such an officer, shall, if present, preside at all meetings of the Board of
Directors and shall exercise and perform such other powers and duties as may be
assigned from time to time by the Board of Directors or prescribed by these
bylaws. If no President is appointed, the Chairman of the Board is the general
manager and chief executive officer of the corporation, and shall exercise all
powers of the President described in Section 42 below.
Section 42. President. Subject to such powers, if any, as may be given
---------
by the Board of Directors to the Chairman of the Board, if there be such an
officer, the President shall be the general manager and chief executive officer
of the corporation and shall have general supervision and control over the
business and affairs of the corporation, subject to the control of the Board of
Directors. The President may sign and execute, in the
-29-
name of the corporation, any instrument authorized by the Board of Directors,
except when the signing and execution thereof shall have been expressly
delegated by the Board of Directors or by these bylaws to some other officer or
agent of the corporation. The President shall have all the general powers and
duties of management usually vested in the president of a corporation, and shall
have such other powers and duties as may be prescribed from time to time by the
Board of Directors or these bylaws. The President shall have discretion to
prescribe the duties of other officers and employees of the corporation in a
manner not inconsistent with the provisions of these bylaws and the directions
of the Board of Directors.
Section 43. Vice Presidents. In the absence or disability of the
---------------
President, in the event of a vacancy in the office of President, or in the event
such officer refuses to act, the Vice President shall perform all the duties of
the President and, when so acting, shall have all the powers of, and be subject
to all the restrictions on, the President. If at any such time the corporation
has more than one vice president, the duties and powers of the President shall
pass to each vice president in order of such vice president's rank as fixed by
the Board of Directors or, if the vice presidents are not so ranked, to the vice
president designated by the Board of Directors. The vice presidents shall have
such other powers and perform such other duties as may
-30-
be prescribed for them from time to time by the Board of Directors or pursuant
to Sections 35 and 36 of these bylaws or otherwise pursuant to these bylaws.
Section 44. Secretary. The Secretary shall:
---------
(a) Keep, or cause to be kept, minutes of all meetings of the
corporation's shareholders, Board of Directors, and committees of the Board of
Directors, if any. Such minutes shall be kept in written form.
(b) Keep, or cause to be kept, at the principal executive
office of the corporation, or at the office of its transfer agent or registrar,
if any, a record of the corporation's shareholders, showing the names and
addresses of all shareholders, and the number and classes of shares held by
each. Such records shall be kept in written form or any other form capable of
being converted into written form.
(c) Keep, or cause to be kept, at the principal executive
office of the corporation, or if the principal executive office is not in
California, at its principal business office in California, an original or copy
of these bylaws, as amended.
-31-
(d) Give, or cause to be given, notice of all meetings of
shareholders, directors and committees of the Board of Directors, as required by
law or by these bylaws.
(e) Keep the seal of the corporation, if any, in safe
custody.
(f) Exercise such powers and perform such duties as are
usually vested in the office of secretary of a corporation, and exercise such
other powers and perform such other duties as may be prescribed from time to
time by the Board of Directors or these bylaws.
If any assistant secretaries are appointed, the assistant
secretary, or one of the assistant secretaries in the order of their rank as
fixed by the Board of Directors or, if they are not so ranked, the assistant
secretary designated by the Board of Directors, in the absence or disability of
the Secretary or in the event of such officer's refusal to act or if a vacancy
exists in the office of Secretary, shall perform the duties and exercise the
powers of the Secretary and discharge such duties as may be assigned from time
to time pursuant to these bylaws or by the Board of Directors.
Section 45. Chief Financial Officer. The Chief Financial Officer
-----------------------
shall:
-32-
(a) Be responsible for all functions and duties of the
treasurer of the corporation.
(b) Keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of account for the corporation.
(c) Receive or be responsible for receipt of all monies due
and payable to the corporation from any source whatsoever; have charge and
custody of, and be responsible for, all monies and other valuables of the
corporation and be responsible for deposit of all such monies in the name and to
the credit of the corporation with such depositaries as may be designated by the
Board of Directors or a duly appointed and authorized committee of the Board of
Directors.
(d) Disburse or be responsible for the disbursement of the
funds of the corporation as may be ordered by the Board of Directors or a duly
appointed and authorized committee of the Board of Directors.
(e) Render to the chief executive officer and the Board of
Directors a statement of the financial condition of the corporation if called
upon to do so.
-33-
(f) Exercise such powers and perform such duties as are
usually vested in the office of chief financial officer of a corporation, and
exercise such other powers and perform such other duties as may be prescribed by
the Board of Directors or these bylaws.
If any assistant financial officer is appointed, the
assistant financial officer, or one of the assistant financial officers, if
there are more than one, in the order of their rank as fixed by the Board of
Directors or, if they are not so ranked, the assistant financial officer
designated by the Board of in the absence or disability of the Chief Directors,
shall, or in the event of such officer's refusal to Financial Officer act,
perform the duties and exercise the powers of the Chief Financial Officer, and
shall have such powers and discharge such duties as may be assigned from time to
time pursuant to these bylaws or by the Board of
Section 46. Compensation. The compensation of the officers shall be
------------
fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving such compensation by reason of the fact that such
officer is also a director of the corporation.
-34-
ARTICLE VI
Contracts, Bank Accounts,
Checks and Drafts
-----------------
Section 47. Execution of Contracts and Other Instruments. Except as
--------------------------------------------
these bylaws may otherwise provide, the Board of Directors or its duly appointed
and authorized committee may authorize any officers to enter into any contract
or execute and deliver any instrument in the name of and on behalf of the
corporation, and such authorization may be general or confined to specific
instances; provided however any such contract or instrument shall be signed by
the Chairman of the Board, Vice President -Kirin, Chief Financial Officer or
Assistant Secretary and by the President, Vice President - Amgen or Secretary.
Except as so authorized or otherwise expressly provided in these bylaws, no
officer, agent, or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
Section 48. Bank Accounts. The Board of Directors or its duly
-------------
appointed and authorized committee from time to time may authorize the opening
and keeping of general and/or special bank accounts with such banks, trust
companies, or other depositories as may be selected by the Board of Directors,
its duly appointed
-35-
and authorized committee or by any officer or officers, agent or agents, of the
corporation to whom such power may be delegated from time to time by the Board
of Directors. The Board of Directors or its duly appointed and authorized
committee may make such rules and regulations with respect to said bank
accounts, not inconsistent with the provisions of these bylaws, as are deemed
advisable.
Section 49. Checks, Drafts, Etc. All checks, drafts or other orders for the
-------------------
payment of money, notes, acceptances or other evidences of indebtedness issued
in the name of the corporation shall be signed by such officer or officers,
agent or agents, of the corporation, and in such manner, as shall be determined
from time to time by resolution of the Board of Directors or its duly appointed
and authorized committee. Endorsements for deposit to the credit of the
corporation in any of its duly authorized depositories may be made, without
counter-signature, by the President or any vice president or the Chief Financial
Officer or any assistant financial officer or by any other officer or agent of
the corporation to whom the Board of Directors or its duly appointed and
authorized committee, by resolution, shall have delegated such power or by
handstamped impression in the name of the corporation.
-36-
ARTICLE VII
Certificates for Shares and Their Transfer
------------------------------------------
Section 50. Certificate for Shares. Every holder of shares in the
----------------------
corporation shall be entitled to have a certificate signed in the name of the
corporation by the Chairman or Vice Chairman of the Board or the President or a
Vice President and by the Chief Financial Officer or an assistant financial
officer or by the Secretary or an assistant secretary, certifying the number of
shares and the class or series of shares owned by the shareholder. Any or all of
the signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if such person were an officer, transfer
agent or registrar at the date of issue.
In the event that the corporation shall issue any shares as only partly
paid, the certificate issued to represent such partly paid shares shall have
stated thereon the total consideration to be paid for such shares and the amount
paid thereon.
Section 51. Transfer on the Books. Upon surrender to the Secretary or
---------------------
transfer agent (if any) of the corporation of a
-37-
certificate for shares of the corporation duly endorsed, with reasonable
assurance that the endorsement is genuine and effective, or accompanied by
proper evidence of succession, assignment or authority to transfer and upon
compliance with applicable federal and state securities laws and if the
corporation has no statutory duty to inquire into adverse claims or has
discharged any such duty and if any applicable law relating to the collection of
taxes has been complied with, it shall be the duty of the corporation, by its
Secretary or transfer agent, to cancel the old certificate, to issue a new
certificate to the person entitled thereto and to record the transaction on the
books of the corporation.
Section 52. Lost, Destroyed and Stolen Certificates. The holder of any
---------------------------------------
certificate for shares of the corporation alleged to have been lost, destroyed
or stolen shall notify the corporation by making a written affidavit or
affirmation of such fact. Upon receipt of said affidavit or affirmation the
Board of Directors, or its duly appointed and authorized committee or any
officer or officers authorized by the board so to do, may order the issuance of
a new certificate for shares in the place of any certificate previously issued
by the corporation and which is alleged to have been lost, destroyed or stolen.
However, the Board of Directors or such authorized committee, officer or
officers may require the owner of the allegedly lost, destroyed
-38-
or stolen certificate, or such owner's legal representative, to give the
corporation a bond or other adequate security sufficient to indemnify the
corporation and its transfer agent and/or registrar, if any, against any claim
that may be made against it or them on account of such allegedly lost, destroyed
or stolen certificate or the replacement thereof. Said bond or other stolen
security shall be in such amount, on such terms and conditions and, in the case
of a bond, with such surety or sureties as may be acceptable to the Board of
Directors or to its duly appointed and authorized committee or any officer or
officers authorized by the Board of Directors to determine the sufficiency
thereof. The requirement of a bond or other security may be waived in particular
cases at the discretion of the Board of Directors or its duly appointed and
authorized committee or any officer or officers authorized by the Board of
Directors so to do.
Section 53. Issuance, Transfer and Registration of Shares. The Board of
---------------------------------------------
Directors may make such rules and regulations, not inconsistent with law or with
these bylaws, as it may deem advisable concerning the issuance, transfer and
registration of certificates for shares of the capital stock of the corporation.
The Board of Directors may appoint a transfer agent or registrar of transfers,
or both, and may require all certificates for shares of the corporation to bear
the signature of either or both.
-39-
ARTICLE VIII
Inspection of Corporate Records
-------------------------------
Section 54. Inspection by Directors. Every director shall have the absolute
-----------------------
right at any reasonable time to inspect and copy all books, records, and
documents of every kind of the corporation and any of its subsidiaries and to
inspect the physical properties of the corporation and any of its subsidiaries.
Such inspection may be made by the director in person or by agent or attorney,
and the right of inspection includes the right to copy and make extracts.
Section 55. Inspection by Shareholders.
--------------------------
(a) Inspection of Corporate Records.
-------------------------------
(i) A shareholder or shareholders holding at least five
percent in the aggregate of the outstanding voting shares of the corporation
shall have an absolute right to do either or both of the following:
(A) Inspect and copy the record of shareholders' names
and addresses and shareholdings during usual business hours upon five business
days' prior written demand upon the corporation; or
-40-
(B) Obtain from the transfer agent, if any, for the
corporation, upon five business days' prior written demand and upon the tender
of its usual charges for such a list (the amount of which charges shall be
stated to the shareholder by the transfer agent upon request), a list of the
shareholders' names and addresses who are entitled to vote for the election of
directors and their shareholdings, as of the most recent record date for which
it has been compiled or as of a date specified by the shareholder subsequent to
the date of demand.
(ii) The record of shareholders shall also be open to
inspection and copying by any shareholder or holder of a voting trust
certificate at any time during usual business hours upon written demand on the
corporation, for a purpose reasonably related to such holder's interest as a
shareholder or holder of a voting trust certificate.
(iii) The accounting books and records and minutes of
proceedings of the shareholders and the Board of Directors and of any committees
of the Board of Directors of the corporation and of each of its subsidiaries
shall be open to inspection, copying and making extracts upon written demand on
the corporation of any shareholder or holder of a voting trust certificate at
any reasonable time during usual business hours, for a purpose
-41-
reasonably related to such holder's interests as a shareholder or as a holder of
such voting trust certificate.
(iv) Any inspection, copying, and making of extracts under
this subsection (a) may be done in person or by agent or attorney.
(b) Inspection of Bylaws. The original or a copy of these bylaws
--------------------
shall be kept as provided in Section 44 of these bylaws and shall be open to
inspection by the shareholders at all reasonable times during office hours. If
the principal executive office of the corporation is not in California, and the
corporation has no principal business office in the state of California, a
current copy of these bylaws shall be furnished to any shareholder upon written
request.
Section 56. Written Form. If any record subject to inspection pursuant to
------------
Section 54 above is not maintained in written form, a request for inspection is
not complied with unless and until the corporation at its expense makes such
record available in written form.
-42-
ARTICLE IX
Miscellaneous
-------------
Section 57. Fiscal Year. Unless otherwise fixed by resolution of the Board
-----------
of Directors, the fiscal year of the corporation shall end on the 31st day of
December in each calendar year.
Section 58. Annual Report. The Board of Directors shall cause an annual
-------------
report to be sent to each shareholder of the corporation in the manner provided
in Section 9 of these bylaws not later than one hundred twenty (120) days after
the close of the corporation's fiscal year. Such report shall include a balance
sheet as of the end of such fiscal year and an income statement and statement of
changes in financial position for such fiscal year, accompanied by any report
thereon independent accountants or, if there is no such report, the certificate
of an authorized officer of the corporation that such statements were prepared
without audit from the books and records of the corporation. Such report shall
be sent to shareholders at least fifteen (15) days prior to, the next annual
meeting of shareholders after the end of the fiscal year to which it relates.
Section 59. Record Date. The Board of Directors may fix a time in the
-----------
future as a record date for the determination of the shareholders entitled to
notice of or to vote at any meeting or
-43-
entitled to receive payment of any dividend or other distribution or allotment
of any rights or entitled to exercise any rights in respect of any change,
conversion or exchange of shares or entitled to exercise any rights in respect
of any other lawful action. The record date so fixed shall not be more than
sixty (60) days nor less than ten (10) days prior to the date of the meeting nor
more than sixty (60) days prior to any other action or event for the purpose of
which it is fixed. If no record date is fixed, the provisions of Section 15 of
these bylaws shall apply with respect to notice of meetings, votes, and consents
and the record date for determining shareholders for any other purposes shall be
at the close of business on the day on which the Board of Directors adopts the
resolutions relating thereto, or the sixtieth (60th) day prior to the date of
such other action or event, whichever is later.
Only shareholders of record at the close of business on the
record date shall be entitled to notice and to vote or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case may
be, notwithstanding any transfer of any shares on the books of the corporation
after the record date, except as otherwise provided in the Articles of
Incorporation, by agreement or by law.
-44-
Section 60. Construction and Definition. Unless the context requires
---------------------------
otherwise, the general provisions, rules of construction, and definitions
contained in the California Corporations Code shall govern the construction of
these bylaws.
Without limiting the foregoing, "shall" is mandatory and
"may" is permissive.
ARTICLE X
Indemnification
---------------
Section 61. Indemnification of Directors, Officers, Employees
-------------------------------------------------
and Other Agents.
- ----------------
(a) Definitions. For the purposes of this Section, "agent"
-----------
means any person who is or was a director, officer, employee, or other agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director, officer, employee, or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" means any threatened,
pending or completed action or proceeding, whether civil, criminal, adminis-
-45-
trative, or investigative; and "expenses" includes, without limitation,
attorneys' fees and any expenses of establishing a right to indemnification
under subsection (d) or subsection e(iii) of this Section.
(b) Indemnification in Actions by Third Parties. The corporation
-------------------------------------------
shall have the power to indemnify any person who was or is a party, or is
threatened to be made a party, to any proceeding (other than an action by or in
the right of this corporation to procure a judgment in its favor) by reason of
the fact that such person is or was an agent of this corporation, against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in the vest
interests of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not, or itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of this corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
-46-
(c) Actions by or in the Right or the Corporation. The corporation
---------------------------------------------
shall have the power to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action by
or in the right of the corporation to procure a judgment in its favor by reason
of the fact that such person is or was an agent of the corporation, against
expenses actually and reasonably incurred by such person in connection with the
defense or settlement of such action if such person acted in good faith, in a
manner such person believed to be in the best interests of the corporation and
with such care, including reasonable inquiry, as an ordinary prudent person in a
like position would use under similar circumstances. No indemnification shall be
made under this subsection (c):
(i) In respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation in the
performance of such person's duty to the corporation, unless and only to the
extent that the court in which such proceeding is or was pending shall determine
upon application that, in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for the expenses which the court
shall determine;
-47-
(ii) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
(iii) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposed of without court approval.
(d) Required Indemnification. To the extent that an agent of the
------------------------
corporation has been successful on the merits in defense of any proceeding
referred to in subsections (b) or (c) of this Section, or in defense of any
claim, issue, or matter therein, the agent shall be indemnified against expenses
actually and reasonably incurred by the agent in connection therewith.
(e) Required Determinations. Except as provided in subsection (d) of
-----------------------
this Section, any indemnification under this Section shall be made by this
corporation only if authorized in the specific case upon a determination that
indemnification of the agent is proper in the circumstances because the agent
has met the applicable standard of conduct set forth in subsections (b) or (c)
of this Section, by:
-48-
(i) A majority vote of a quorum consisting of directors who
are not parties to such proceeding;
(ii) Approval or ratification by the affirmative vote of a
majority of the shares represented and voting at a duly held meeting at which
quorum is present (which shares voting affirmatively also constitute at least a
majority of the required quorum) or by the written consent of the shareholders,
with the shares owned by the person to be indemnified not being entitled to vote
thereon; or
(iii) The court in which such proceeding is or was pending, upon
application made by the corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such
application by the agent, attorney, or other person is opposed by the
corporation.
(f) Advance of Expenses. Expenses incurred in defending any
-------------------
proceeding may be advanced by the corporation prior to the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of the agent to
repay such amount unless it shall be determined ultimately that the agent is
entitled to be indemnified as authorized in the Section.
-49-
(g) Other Indemnification. No provision made by the corporation to
---------------------
indemnify its or its subsidiary's directors or officers for the defense or any
proceeding, whether contained in the Articles of Incorporation, bylaws, a
resolution of shareholders or directors, an agreement, or otherwise shall be
valid unless consistent with this Section. Nothing contained in this Section
shall affect any right to indemnification to which persons other than such
directors and officers may be entitled by contract or otherwise.
(h) Limitations. No indemnification or advance shall be made under
-----------
this Section, except as provided in subsection (d) or subsection (e)(iii), in
any circumstance where it appears:
(i) That is would be inconsistent with a provision of the
Articles of Incorporation, bylaws, a resolution of the shareholders, or an
agreement in effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or other amounts
were paid, which prohibits or otherwise limits indemnification; or
(ii) That is would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
-50-
(i) Insurance. The corporation shall have power to purchase and
---------
maintain insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in such capacity or arising
out of the agent's status as such whether or not the corporation would have the
power to indemnify the agent against such liability under the provisions of this
Section.
(j) Fiduciaries of Corporate Employee Benefit Plan. This
----------------------------------------------
Section does not apply to any proceeding against any trustee, investment
manager, or other fiduciary of an employee benefit plan in such person's
capacity as such, even though such person may also be an agent as defined in
subsection (a) of this Section. The corporation shall have power to indemnify
such a trustee, investment manager or other fiduciary to the extent permitted by
California Corporations Code, Section 207(f).
ARTICLE XI
Amendments
----------
Section 62. Amendments. New Bylaws may be adopted or these Bylaws may
----------
be amended or repealed only by the vote or written consent of holders of all of
the outstanding shares entitled to vote.
-51-
[LETTERHEAD OF MUSICK, PEELER & GARRETT]
June 13, 1984
WRITER'S DIRECT DIAL NUMBER
(213) 629-7616
CONFIDENTIAL
- ------------
Kirin Brewery Co., Ltd. Kirin-Amgen, Inc.
26-1 Jingumae 1900 Oak Terrace Lane
6 Chome Thousand Oaks, CA 91320
Shibuya-ku U.S.A.
Tokyo 150, JAPAN
Amgen
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
U.S.A.
Re: Kirin-Amgen, Inc.
Gentlemen:
The California State Bar had adopted a set of Rules of
Professional Conduct by which its members are governed. One such rule is Rule
5-102 (B) which reads as follows:
"(B) A member of the State Bar shall not
represent conflicting interests, except with
the written consent of all parties
concerned."
Our office has been asked by each of you to act as
legal counsel to Kirin-Amgen, Inc., a California corporation
("Corporation").
This is quite an array of responsibility, and with it goes the
potential of a conflict of interest. Accordingly, we hereby declare to each of
you that the following are conditions of our continued engagement by all of you:
(1) If any one or more of you shall ever be of the
view that our continued representation of the several interests which
have been referred to above is not agreeable to you for any reason, or
(2) If we shall reach that same view,
EXHIBIT "F"
MUSICK, PEELER & GARRETT
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
Kirin Brewery Co., Ltd.
Amgen
Kirin-Amgen, Inc.
June 13, 1984
Page Two
(2) If we shall reach that same view, then the entity
desiring to have representation of Corporation terminated should notify all
others concerned. Upon such notice, we pledge to do everything reasonably
necessary and appropriate to effect a termination of the representation as soon
as practicable and in such a manner as befits the circumstances existing at that
time.
In order that we might be in compliance with the above-cited
Rule, we ask each of you to be good enough to sign a copy of this letter and
return the same to us. The extra copy is for your files.
Kindest personal regards.
Very truly yours,
/s/ Joel S. Marcus, P.C.
of MUSICK, PEELER & GARRETT
JSM/jr
Enclosure
Each of the undersigned hereby acknowledges receipt of the
foregoing letter, and with full knowledge of the contents thereof, hereby waives
any conflict of interest that may exist by reason of the undertaking of Musick,
Peeler & Garrett to provide a legal representation as described therein.
KIRIN BREWERY CO., LTD., a KIRIN-AMGEN, INC., a
Japanese corporation California corporation
By: /s/ Noboru Miyadai By: /s/ Tatsuhiko Kaneka
General Manager R & D Dept. Its Vice President - Kirin
Date: June 13, 1984 Date: June 13, 1984
AMGEN, a California corporation
By: /s/ Gordon M. Binder
Its Vice President
Date: June 13, 1984
A MEMBER OF ARTHUR YOUNG INTERNATIONAL
ARTHUR YOUNG
515 South Flower Street
Los Angeles, California 90071
June 13, 1984
KIRIN-AMGEN, Inc.
1892 Oak Terrace Lane
Newbury Park, California 91320
Attention: Mr. Gordon M. Binder
We are pleased to accept appointment as certified public accountants
for KIRIN-AMGEN, Inc. to examine and report on your annual financial
statements. In addition, our services will include the preparation of
your federal and state income tax returns. We will also be prepared to
be helpful to you on any problems within our competence that might
arise during the year, and hope that you will call on us at any time
you think we can be of assistance.
Gary Johnson and Joe Johns will be responsible for coordinating and
managing all of the services we perform for you. Marty Melone will be
the colleague partner who will consult with Messrs. Johnson and Johns
on significant aspects of the engagement and substitute for them when
they are unavailable.
It will be the responsibility of Mr. Johnson and Mr. Johns to make
sure that your management receives good service. They will, as-
desirable, call upon other individuals with specialized knowledge and
skills, either in this office or elsewhere in the firm. An audit
manager and a tax manager will be assigned to your work, and we expect
that they will soon establish direct working relationships with
personnel in your Company.
Our examination of your annual financial statements will be made in
accordance with generally accepted auditing standards and accordingly
will include such tests as we consider necessary in the circumstances.
Unless unusual conditions not now foreseen make it impracticable for
us to do so, we will submit a report on our examination of these
financial statements which will express an opinion as to the fairness
of their presentation in conformity with generally accepted accounting
principles.
EXHIBIT "G"
Mr. Gordon M. Binder
June 13, 1984
page 2
Under generally accepted auditing standards the independent auditor
has the responsibility, within the inherent limitations of the
auditing process, to plan the examination to search for errors or
irregularities (as defined in authoritative professional literature)
that would have a material effect on the financial statements. Our
search for material errors or irregularities ordinarily is
accomplished by performing those auditing procedures that in our
judgment are appropriate in the circumstances to form an opinion on
the financial statements as a whole. Our examination, which is based
on the concept of selective testing of the data being examined, is
subject to the inherent risk that material errors or irregularities,
if they exist, will not be detected.
In conducting our examination, we will be aware of the possibility
that illegal acts (as defined in authoritative professional
literature) may have occurred that may have a material effect on the
financial statements. Examinations conducted in accordance with
generally accepted auditing standards are of limited effectiveness in
discovering possible illegal acts and cannot be expected to provide
assurance that illegal acts will be detected, although procedures that
are performed primarily for the purpose of forming an opinion on the
financial statements as a whole may also bring possible illegal acts
to the auditor's attention.
During the course of our examination, we may observe opportunities for
economies in or improved controls over your operations. It is our
practice to bring such opportunities to the attention of an executive
at the appropriate level of management, either orally or in writing.
Should you desire any further information concerning our
responsibilities and functions as an independent auditor in making the
examination, we shall be pleased to furnish information to you upon
request.
Our charges are based on hours worked by the various grades of
personnel, at our standard rates applicable to each. We will bill you
monthly on the basis of such charges plus out-of-pocket expenses. We
will submit annually, for your approval, budgets outlining our
estimated fees and expenses.
Mr. Gordon M. Binder
June 13, 1984
page 3
If this letter meets with your approval, please sign one copy and return it
to us.
We very much appreciate the opportunity to act as your independent auditors
and trust that our association will be a long and pleasant one.
Yours very truly,
/s/ Arthur Young & Company
KIRIN-AMGEN, Inc.
By: /s/ Robert D. Weist Date: June 13, 1984
KIRIN BREWERY CO., LTD./KIRIN-AMGEN, INC.
-----------------------------------------
SERVICES AGREEMENT
------------------
THIS KIRIN BREWERY CO., LTD./KIRIN-AMGEN, INC. SERVICES AGREEMENT
("Agreement") is made as of this day of, 1984, by and between KIRIN
BREWERY CO., LTD., a Japanese corporation, ("Kirin"), and KIRIN-AMGEN, INC., a
California corporation ("Company").
R E C I T A L S
WHEREAS, Amgen, Kirin and the Company have entered into that
certain Shareholders' Agreement, dated May 11, 1984, ("Shareholders'
Agreement"), with respect to the formation of the Company to engage in the
development, manufacture, production and sale of EPO products (as defined
in the Shareholders' Agreement) for human therapeutic use in the Field of
Activity (as defined in the Shareholders' Agreement);
WHEREAS, Kirin is willing to provide or cause to be provided
certain services to the Company as described below and in accordance with
the terms set forth below;
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, IT IS HEREBY AGREED AS FOLLOWS:
EXHIBIT "H"
ARTICLE I
DEFINITIONS
-----------
1.01 Administrative Services: Those services more fully
-----------------------
described in Article III hereof including without limitation financial,
legal, personnel, and public relations services.
1.02 EPO: As defined in the Shareholders' Agreement (the
"Shareholders' Agreement") among Kirin, Amgen, a corporation organized and
existing under the laws of California ("Amgen"), and the Company, of even
date herewith.
1.03 Field of Activity: As defined in the Shareholders'
Agreement.
1.04 Management Support Services: Those services more fully
described in Article II hereof, including without limitation the marketing
support and commercial development services to be supplied by the personnel
referred to in Article II.
1.05 Subsidiary: A corporate entity other than Kirin, of
----------
which at least fifty percent (50%) of the voting stock is owned or
controlled, directly or indirectly, by Kirin.
ARTICLE II
MANAGEMENT SUPPORT SERVICES
---------------------------
2.01 Types of Services. For the term of this Agreement, Kirin
-----------------
shall make available to the Company the following
-2-
services in connection with the Field of Activity as the Company requests:
(a) general management support in connection with the
day-to-day operation of the Company's business, including operating and
sales services; and
(b) commercial development and marketing research
services concerning the Field-of Activity.
2.02 Personnel. Kirin shall make available to the Company the
---------
services described in Section 2.01. Upon the request of the Company, Kirin
shall assign to the Company various personnel or consultants retained by
Kirin to provide such services. Such personnel or -consultants shall report
directly to the Chief Executive Officer of the Company or his designee and
to carry out their reasonableand lawful orders in connection with the
furnishing of such services as described in Section 2.01. Such personnel or
consultants shall be compensated by, and shall remain as employees or
consultants of Kirin.
ARTICLE III
ADMINISTRATIVE SERVICES
-----------------------
3.01 Administrative Services. Kirin shall make available to
-----------------------
the Company the services of its treasury, control, planning, internal
audit, tax, legal, personnel, public relations, data processing, purchasing
and insurance departments, or the
-3-
equivalents thereof, and other miscellaneous administrative staff groups,
or the equivalents thereof, to advise and assist the Company with respect
to matters falling within the areas of expertise of these various
departments as the Company requests.
3.02 Requests and Timing of Services. The Administrative
-------------------------------
Services under this Article III shall be made available to the Company in
accordance with written requests made by the Company and shall be performed
by Kirin's internal staff groups which generally perform such services for
Kirin. These Administrative Services shall be provided by Kirin in a
reasonably prompt manner subject to the availability of personnel and the
level of tasks generally demanded of the Kirin staff groups involved.
ARTICLE IV
CHARGES FOR SERVICES
--------------------
4.01 Charges for Services. Services supplied to the Company
--------------------
by Kirin under Articles II and III hereof shall be charged on the following
basis:
The Company will be charged for each hour of service supplied
hereunder an amount equal to the product of two and one-half (2 1/2,' and
the annual base salary of the person supplying a particular service to the
Company, divided by two thousand (2000). Base salary for the purposes of
this section
-4-
shall mean the base salary paid to such person by Kirin or a Subsidiary for
the twelve (12) month period terminating at the end of the fiscal
quarterimmediately preceding (or for persons who were not employed by Kirin
or a Subsidiary for such period an annualized equivalent computation
thereof) the time the services were rendered and shall not include bonuses
or an amount for fringe or other benefits.
4.02 Reimbursement and Record -Keeping. For all services
---------------------------------
supplied to the Company by Kirin under Articles II and III hereunder, the
Company shall make reimbursement to Kirin monthly within thirty (30) days
of receipt of Kirin's invoice therefor. Kirin shall keep reasonable records
as evidence of the above costs for periods of not less than three (3) years
and shall allow the Company to examine such records at reasonable times.
ARTICLE V
RESPONSIBILITY
--------------
5.01 Relationship of the Parties. Nothing in this Agreement
---------------------------
shall be construed as (a) an assumption by Kirin of any obligation to
increase the sales or profits of the Company or otherwise to guarantee the
success (b) of the Company's operations; an assumption by Kirin of any
Company; financial obligation to the
-5-
between the Company and employees or consultants of Kirin, its subsidiaries
or associated companies; (d) an assumption by Kirin of any responsibility
for the work performed by outside suppliers employed by the Company at the
suggestion or recommendation of Kirin; or (e) the delegation of any
function or authorityof the Company to Kirin; it being understood that
Kirin will make recommendations and offer advice pursuant to this Agreement
but that all decisions with respect thereto and otherwise shall be and
remain dependent upon appropriate action of the Board of Directors or the
authorized officers of the Company.
ARTICLE VI
TERM
----
6.01 Term. This Agreement shall come into effect as of the
----
date hereof and shall remain in full force and effect until terminated by
the agreement of the parties.
ARTICLE VII
NOTICE
------
7.01 Method and Addresses. Any notices required or permitted
--------------------
to be given pursuant to this Agreement shall be given in writing and
forwarded charges prepaid, by registered first-
-6-
class mail, or by telex confirmed by registered-first-class mail, and
addressed as follows:
If to Kirin: Senior Vice President
KIRIN BREWERY CO., LTD.
26-1, Jingumae 6 Chome
Shibuya-Ku, Tokyo 150
JAPAN
Telex No.: 242-5401 KIRIN J
If to the Company: President
KIRIN-AMGEN, INC.
c/o 1900 Oak Terrace Lane
Thousand Oaks, CA 91320 USA
Telex No.:
With a copy to: Joel S. Marcus, P.C.
Musick, Peeler & Garrett
One Wilshire Boulevard
Los Angeles, CA 90017
Either party may give written notice for a change of address in accordance
with the provisions of this Article VII and, there after, any notice or
request to be given hereunder shall be forwarded to the new address so
provided. All notices given hereunder shall be deemed to have been received
by the party addressed (a) immediately upon personal delivery, (b) one (1)
business day after notice given by telegram or telex, or (c) ten (10)
business days after the date of posting of notice sent by
-7-
ARTICLE VIII
HEADINGS
--------
8.01 Headings. Article and Section headings in this Agreement
--------
are included for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
ARTICLE IX
ASSIGNMENT
----------
9.01 Written Consent. This Agreement shall be binding upon
---------------
and inure to the benefit of Kirin and its successors and assigns. This
Agreement may not be assigned in whole or in part by either party except
with the prior written consent of the other party.
ARTICLE X
MISCELLANEOUS
-------------
10.01 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties with respect to the services described herein
to be provided by Kirin to the Company and supersedes all previous
negotiations, commitments and writings. This Agreement may not be modified
or amended except
-8-
by a writing duly signed by the authorized representatives of the parties
hereto. Any condition or provision of or in any document or communication
whatsoever, other than a writing amending or modifying this Agreement- in
accordance with the second sentence of this Section 10.01, shall be deemed
inapplicable to the obligations between the parties hereto.
10.02 Amendments and Waivers. Any term of this Agreement may
----------------------
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Kirin and the Company.
ARTICLE XI
APPLICABLE LAW
--------------
11.01 Application of California Law. This Agreement shall be
-----------------------------
governed by and construed in accordance with the laws of the State of
California.
IN WITNESS WHEREOF, Kirin and the Company have caused this
Agreement to be executed by their respective duly authorized
-9-
representatives in the manner legally binding upon them as of the date first
above written.
KIRIN BREWERY CO., LTD.
By
Its
KIRIN-AMGEN, INC.
BY
Its
-10-
AMGEN/KIRIN-AMGEN, INC.
-----------------------
SERVICES AGREEMENT
------------------
THIS AMGEN/KIRIN-AMGEN, INC. SERVICES AGREEMENT ("Agreement") is made
as of this day of , 1984, by and between AMGEN, a California corporation
("Amgen") and KIRIN AMGEN, INC., a California corporation ("Company").
R E C I T A L S
WHEREAS, Amgen, Kirin and the Company have entered into that certain
Shareholders' Agreement, dated May 11, 1984, ("Shareholders' Agreement"), with
respect to the formation of the Company to engage in the development,
manufacture, production and sale of EPO products (as defined in the
Shareholders' Agreement) for human therapeutic use in the Field of Activity (as
defined in the Shareholders' Agreement);
WHEREAS, Amgen is willing to provide or cause to be provided certain
services to -the Company as described below and in accordance with the terms set
forth below;
EXHIBIT "I"
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE I
DEFINITIONS
-----------
1.01 Administrative Services: Those services more fully described in
-----------------------
Article III hereof including, without limitation, financial, legal, personnel,
and public relations services.
1.02 EPO: As defined in the Shareholders' Agreement (the
"Shareholders' Agreement") among Amgen, Kirin Brewery Co., Ltd., a corporation
organized and existing under the laws of Japan ("Kirin"), and the Company, of
even date herewith.
1.03 Field of Activity: As defined in the Shareholders' Agreement.
-----------------
1.04 Management Support Services: Those services more fully described
in Article II hereof, including without limitation the marketing support and
commercial development services to be supplied by the personnel referred to in
Article II.
1.05 Subsidiary: A corporate entity other than Amgen, of which at
----------
least fifty percent (50%) of the voting stock is owned or controlled, directly
or indirectly, by Amgen.
-2-
ARTICLE II
MANAGEMENT SUPPORT SERVICES
---------------------------
2.01 Types of Services. For the term of this Agreement, Amgen shall
-----------------
make available to the Company the following services in connection with the
Field of Activity as the Company requests:-
(a) general management support in connection with the day-to-day
operation of the Company's business, including operating and sales services; and
(b) commercial development and marketing research services
concerning the Field of Activity.
2.02 Personnel. Amgen shall make available to the Company the services
---------
described in Section 2.01. Upon request of the Company, Amgen shall assign to
the Company various personnel or consultants retained by Amgen to provide such
services. Such personnel or consultants shall report directly to the Chief
Executive Officer of the Company or his designee and to carry out their
reasonable and lawful orders in connection with the furnishing of such services
as described in Section 2.01. Such personnel or consultants shall be compensated
by Amgen and shall remain as employees or consultants of Amgen.
-3-
ARTICLE III
ADMINISTRATIVE SERVICES
-----------------------
3.01 Administrative Services. Amgen shall make available to the
-----------------------
Company the services of its treasury, control, planning, internal audit, tax,
legal, personnel, public relations, data procesing, purchasing and insurance
departments, or the equivalents thereof, and other miscellaneous administrative
staff groups, or the equivalents thereof, to advise and assist the Company with
respect to matters falling within the areas of expertise of these various
departments as the Company requests.
3.02 Requests and Timing of Services. The Administrative Services
-------------------------------
under this Article III shall be made available to the Company in accordance with
written requests made by the Company and shall be performed by Amgen's internal
staff groups which generally perform such services for Amgen. These
Administrative Services shall be provided by Amgen in a reasonably prompt manner
subject to the availability of personnel and the level of tasks generally
demanded of the Amgen staff-groups involved.
-4-
ARTICLE IV
CHARGES FOR SERVICES
--------------------
4.01 Charges for Services. Services supplied to the Company by Amgen
--------------------
under Articles II and III hereof shall be charged on the following basis:
The Company will be charged for each hour of service supplied
hereunder an amount equal to the product of two and one-half (2 1/2) and the
annual base salary of the person supplying a particular service to the Company,
divided by two thousand (2000). Base salary for the purposes of this section
shall mean the base salary paid to such person by Amgen or a Subsidiary for the
twelve (12) month period termination at the end of the fiscal quarter
immediately preceding (or for persons who were not employed by Amgen or a
Subsidiary for such period an annualized equivalent computation thereof) the
time the services were rendered and shall not include bonuses or an amount for
fringe or other benefits.
4.02 Reimbursement and Record Keeping. For all services supplied to
--------------------------------
the Company by Amgen under Articles II and III hereunder, the Company shall make
reimbursement to Amgen monthly within thirty (30) days of receipt of Amgen's
invoice therefor: Amgen shall keep reasonable records as evidence of the above
costs for periods of not less than three (3) years and shall allow the Company
to examine such records at reasonable times.
-5-
ARTICLE V
RESPONSIBILITY
--------------
5.01 Relationship of the Parties. Nothing in this Agreement shall be
---------------------------
construed as (a) an assumption by Amgen of any obligation to increase the sales
or profits of the Company or otherwise to guarantee the success of the Company's
operations; (b) an assumption by Amgen of any financial obligation to the
Company; (c) the creation of any relationship of employment between the Company
and employees or consultants of Amgen, its subsidiaries or associated companies;
(d) an assumption by Amgen of any responsibility for the work performed by
outside suppliers employed by the Company at the suggestion or recommendation of
Amgen; or (e) the delegation of any function or authority of the Company to
Amgen; it being understood that Amgen will make recommendations and offer advice
pursuant to this Agreement but that all decisions with respect thereto and
otherwise shall be and remain dependent upon appropriate action of the Board of
Directors or the authorized officers of the Company.
ARTICLE VI
TERM
----
6.01 Term. This Agreement shall come into effect as of the date hereof
----
and shall remain in full force and effect until terminated by the agreement of
the parties.
-6-
ARTICLE VII
NOTICES
-------
7.01 Method and Addresses. Any notices required or permitted to be
--------------------
given pursuant to this Agreement shall be given in writing and forwarded charges
prepaid, by registered firstclass mail, or by telex confirmed by registered
first-class mail, and addressed as follows:
If to Amgen: Chief Financial Officer
Amgen
1900 Oak Terrace Lane
Thousand Oaks, CA 91320 USA
Telex No.:
With a copy to: Alan C. Mendelson, Esq.
Cooley, Godward, Castro,
Huddleson & Tatum
5 Palo Alto Square
Suite 400
Palo Alto, CA 94306
If to the Company: Chief Financial Officer
Kirin-Amgen, Inc.
1900 Oak Terrace Lane
Thousand Oaks, CA 91320 USA
Telex No.:
With a copy to: Joel S. Marcus, P.C.
Musick, Peeler & Garrett
One Wilshire Boulevard
Los Angeles, CA 90017
Either party may give written notice for a change of address in accordance with
the provisions of this Article VII and, there after, any notice or request to be
given hereunder shall be forwarded to the new address so provided. All notices
given hereunder shall be deemed to have been received by the party
-7-
addressed-(a) immediately upon personal delivery, (b) one (1) business day after
notice given by telegram or telex, or (c) ten (10) business days after the date
of posting of notice sent by registered or certified mail.
ARTICLE VIII
HEADINGS
--------
8.01 Headings. Article and Section headings in this Agreement are
--------
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
ARTICLE IX
ASSIGNMENT
----------
9.01 Written Consent. This Agreement shall be binding upon and inure
---------------
to the benefit -of Amgen and its successors and assigns. This Agreement may not
be assigned in whole or in part by either party except with the prior written
consent of the other party.
-8-
ARTICLE X
MISCELLANEOUS
-------------
10.01 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties with respect to the services described herein to
be provided by Amgen to the Company and supersedes all previous negotiations,
commitments, and writings. This Agreement may not be modified or amended except
by a writing duly signed by the authorized representatives of the parties
hereto. Any condition or provision of or in any document or communication
whatsoever, other than a writing amending or modifying this Agreement in
accordance with the second sentence of this Section 10. 01, shall be deemed
inapplicable to the obligations between the parties hereto.
10.02 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Amgen and the Company.
ARTICLE XI
APPLICABLE LAW
--------------
11.01 Application of California Law. This Agreement shall be governed
-----------------------------
by and construed in accordance with the laws of the State of California.
-9-
IN WITNESS WHEREOF, Amgen and the Company have caused this
Agreement to be executed by their respective duly authorized representatives in
the manner legally binding upon them as of the date first above written.
AMGEN
By
Its
KIRIN-ANGEN, INC.
By
Its
-10-
KIRIN BREWERY CO., LTD./KIRIN-AMGEN, INC.
----------------------------------------
LICENSE AGREEMENT
-----------------
THIS KIRIN BREWERY CO., LTD./KIRIN-AMGEN, INC. LICENSE
AGREEMENT ("Agreement") is made this day of , 1984, by and between
KIRIN-AMGEN, INC., a California corporation ("Company"), and KIRIN BREWERY CO.,
LTD., a Japanese corporation ("Kirin").
R E C I T A L S
WHEREAS, Amgen, a corporation organized and existing under the
laws of the State of California ("Amgen"), has assigned to the Company,
perpetually and irrevocably, certain proprietary technology relating to and
useful in the production and worldwide commercial sale of erythropoietin;
WHEREAS, Amgen, Kirin and the Company have entered into that
certain Shareholders' Agreement, dated May 11, 1984, ("Shareholders'
Agreement"), with respect to the formation of the Company to engage in the
development, manufacture, production and sale of EPO products (as defined in the
Shareholders' Agreement) for human therapeutic use in the Field of Activity (as
defined in the Shareholders' Agreement).
EXHIBIT "J"
WHEREAS, Kirin, Amgen and the Company have entered into a
Development and Supply Agreement of even date herewith (the "Development
Agreement"), pursuant to which Kirin and Amgen will conduct development work for
the Company with regard to certain elements of the Transferred Technology (as
hereinafter defined), and the Company will own the entire right, title and
interest in such technology, patent rights and organisms (including the right to
grant the license to Kirin hereunder);
WHEREAS, Kirin desires to obtain from the Company the EPO
Technology and to acquire a license to such technology, patent rights and
organisms in order to develop, manufacture, market and sell EPO (as hereinafter
defined) in the Field of Activity (as hereinafter defined) in its Territory (as
hereinafter defined) employing such technology; and in view of the Shareholders'
Agreement and the parties further development activities pursuant to the
Development Agreement, the Company is willing to grant such a license to Kirin;
and
WHEREAS, the Company has granted a similar license to Amgen,
of-even date herewith (the "Amgen License"), with respect to the exploitation of
the EPO Technology in the United States of America, its territories and
possessions, on substantially the same terms and conditions contained herein and
for the same purposes described herein.
-2-
NOW, THEREFORE, in consideration of the mutual covenants
expressed herein and other good and valuable consideration, the parties hereby
agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.01 EPO: "EPO" shall have the meaning set forth in the
Shareholders' Agreement.
1.02 EPO Technology: "EPO Technology" shall have the
--------------
meaning set forth in the Shareholders' Agreement.
1.03 EPO Organisms: "EPO Organisms" shall have the
-------------
meaning set forth in the Shareholders' Agreement.
1.04 Territory: "Territory" shall mean the territory
---------
composed of the country of Japan.
1.05 Field of Activity: "Field of Activity" shall have
-----------------
the meaning set forth in the Shareholders' Agreement.
1.06 Party. "Party" shall mean Kirin or the Company or,
-----
when used in the plural, Kirin and the Company.
1.07 Development Program: "Development Program" shall
-------------------
have the meaning set forth in the Shareholders' Agreement.
1.08 Subsidiary: "Subsidiary" shall mean a corporate
----------
entity more than 50% of the voting stock of which is owned or controlled,
directly or indirectly, by Kirin or the Company.
-3-
1.09 Term of Support: "Term of Support" shall have the
---------------
meaning set forth in the Development Agreement.
1.10 Sales Value: "Sales Value" means the gross amount billed
by Kirin and its Subsidiaries, as the case may be, to customers with respect to
the sale or use of EPO Products less: (1) trade and/or quantity discounts, to
the extent permitted by law; (2) returns and allowances; and (3) retroactive
price reductions.
1.11 Force Majeure: "Force Majeure" shall have the
-------------
meaning set forth in Article 22 of the Shareholders' Agreement.
ARTICLE II
GRANT OF LICENSE
----------------
2.01 Grant of License. For the term of this Agreement
----------------
and subject to the reservations contained in this Article II, the Company hereby
grants to Kirin a sole and exclusive license to all EPO Technology, for the
limited purposes of engaging in the Field of- Activity and solely for use in the
manufacture and marketing of EPO in the Territory.
-4-
2.02 Rights to Sublicense. The Company also grants to
--------------------
Kirin the right to grant sublicenses within and limited to the scope of the
right and license granted to the Company in Section 2.01 only (a) to any
Subsidiary of Kirin, (b) to customers of Kirin, inlcuding marketing and
distribution agents, in connection with sales of EPO, (c) to a single
manufacturer of EPO, other than Kirin or any Subsidiary, for the account of
Kirin, and (d) to licensees of Kirin under patents, know-how or materials owned
by Kirin to the extent such licensees require any such sublicenses in order to
practice the patents or know-how or to use the materials that are the subject of
the license from Kirin; provided, however, that no sublicense shall be granted
under clause (c) or (d) hereof without the prior written consent (not to be
unreasonably withheld) of the Company. Any sublicensees of Kirin shall undertake
in writing to be bound by the provisions of Section 3.02 hereof to the same
extent Kirin is bound. Kirin shall notify the Company of the identity of each
sublicensee to whom a sublicense is granted and provide the Company a true copy
of such sublicense. In the event that the license granted to Kirin hereunder is
terminated at any time, the Company shall have the option to terminate or to
have Kirin assign to the Company, retroactive to such termination, any
sublicenses granted hereunder by Kirin to any Subsidiary of Kirin. Kirin shall
include, in all its sublicenses granted hereunder to any Subsidiary of Kirin,
provisions for such termination and assignment.
-5-
2.03 Amgen License. The Company reserves the right to
-------------
grant licenses to utilize the EPO Technology to Amgen in accordance with the
terms of the Amgen License.
2.04 Other Licenses. The Company reserves the right to
--------------
grant licenses to utilize the EPO Technology in the manner provided in the
Shareholders' Agreement.
2.05 No License Fee. Except as provided in Article IV,
--------------
there shall be no license fee paid to the Company by Kirin for the grant of the
license described in this Article II.
ARTICLE III
DISCLOSURE
----------
3.01 Disclosure.
----------
(a) The Company shall, in accordance with the
Shareholders' Agreement and the Development Agreement during the Term of
Support, reasonably disclose and deliver to Kirin all EPO Technology in
sufficient detail to permit Kirin to employ such data for the purposes provided
herein.
(b) Kirin shall, during the Term of Support, have
the right to attend and participate in the Company's technical meetings, conduct
plant visits at reasonable intervals and receive information concerning the EPO
Technology.
-6-
3.02 Confidentiality.
---------------
(a) Any secret or confidential EPO Technology which
is disclosed to Kirin pursuant to this Agreement or the Shareholders' Agreement,
shall be designated as confidential information in the following manner:
(i) If the disclosure is in written form,
by prominently marking or stamping each document containing such information
with a notice indicating the confidential and proprietary nature of the
information; and
(ii) If the disclosure is in oral form, by
orally stating at the time of such disclosure that the information disclosed is
confidential and proprietary and by delivering to Kirin within fifteen (15) days
of the oral disclosure written notice confirming the confidential and
proprietary nature of the information.
(b) Except to the extent expressly authorized by
Agreement, the Shareholders' Agreement, the Development Agreement or by other
prior written consent of the Company for the term of this Agreement and
thereafter, Kirin shall keep completely confidential and shall not publish or
otherwise disclose to others and shall not use any secret or confidential EPO
Technology disclosed or provided to Kirin by the Company. For the purposes of
this Agreement, EPO Technology shall be deemed not secret or confidential to the
extent, and only to the extent, that it:
-7-
(i) was known to Kirin at the time of its disclosure
and not otherwise subject to an obligation of Kirin to keep such information
confidential;
(ii) was generally available to the public or was
otherwise part of the public domain at the time of its disclosure;
(iii) became generally available to the public or
became otherwise part of the public domain after its disclosure and other than
through any act or omission of Kirin in breach of this Agreement; or
(iv) became known to Kirin after its disclosure (A)
from a source other than the Company (including from independent development by
Kirin), (B) other than from a third party who had an obligation to the Company
not to disclose such information to others, and (C) other than under an
obligation of confidentiality. Kirin may disclose any EPO Technology to the
extent such disclosure or delivery is necessary for Kirin to comply with laws or
regulations, or to make, use or sell under any license granted hereunder by the
Company or to sublicense others to do so; provided, that Kirin shall give the
Company reasonable advance notice of such proposed disclosure or delivery, shall
use its best efforts to secure confidential treatment of the EPO Technology to
be disclosed and shall advise the Company in writing of the manner in which that
was done.
-8-
(c) The obligation of confidentiality imposed by
this Section 3.02 shall survive termination of this Agreement for any reason
whatsoever.
3.03 EPO Organisms.
-------------
(a) The Company shall during the Term of Support
provide to Kirin such EPO Organisms as Kirin requests and as are required for
Kirin's business within the Field of Activity, solely for use by Kirin during
the period of and under the terms of the right to use such EPO Organisms granted
by the Company to Kirin in Sections 2.01 and 2.02, above.
(b) The license granted herein to Kirin with
respect to the EPO Organisms shall be limited solely to the use by Kirin of such
EPO Organisms in the Field of Activity. Except as expressly authorized by this
Agreement or by other prior written consent of the Company, for the term of this
Agreement and thereafter, Kirin shall not deliver, transmit or provide to any
person other than to a sublicensee under a license granted in accord in Section
2.02, and shall not use, any of the EPO Organisms owned by the Company, or
authorize, cause or aid anyone else to do so. Except for Sections 2.01 and 2.02,
above, nothing in this Agreement shall be deemed to give Kirin any right or
license to use, manufacture, replicate or reproduce any of the EPO Organisms
owned by the Company, or to authorize, aid, or cause others so to do.
-9-
ARTICLE IV
ROYALTY
-------
4.01 Royalty. Kirin shall pay to the Company a royalty, at the applicable
-------
rate hereinafter specified, on EPO which is sold by Kirin or any of its
Subsidiaries in the Territory while any license acquired hereunder by Kirin with
respect to EPO shall remain in force, whether or not such Subsidiaries are
sublicensed pursuant to Section 2.05, such royalty rate to be applied to the
Sales Value of such EPO. The royalty rate applicable to the EPO is five percent
(5%) of the Sales Value.
4.02 Sales to Subsidiaries. No royalties shall be payable in respect of any
---------------------
sale of EPO as between Kirin and any Subsidiary, but any resale of such EPO, or
use thereof to manufacture a product for sale by Kirin and any such Subsidiary
shall require the payment of a royalty hereunder to the Company.
4.03 Records. Kirin shall keep full, complete and accurate records with
-------
regard to the sale of EPO sufficient to enable the Company to verify the
accuracy of the statements required by Section 4.04 (a) hereof. The Company
shall have the right through its accredited auditing representative to make an
examination and audit, during normal business hours, not more frequently than
annually, of all such records and such other records and accounts as may under
recognized accounting practices contain information bearing upon the amount of
royalty payable to
-10-
it under this Agreement. Prompt adjustment shall be made by the proper partyto
compensate for any errors or omissions disclosed by such examination or audit.
Neither such right to examine and audit nor the right to receive such adjustment
shall be affected by any statement to the contrary, appearing on checks or
otherwise, unless such statement appears in a letter, signed by the party having
such right and delivered to the other party, expressly waiving such rights.
4.04 Terms of Accounting.
-------------------
(a) Within sixty (60) days after the end of each semiannual period
ending on June 30th or December 31st, commencing with the semiannual period
after the first sale of EPO by Kirin, Kirin shall. furnish to the Company a
statement, in form acceptable to the Company, certified by a responsible
official of Kirin showing,all EPO sold during such semiannual period, the Sales
Value of .such EPO and the amount of royalty payable thereon (or if no EPO has
been so sold, showing this fact).
(b) Within such sixty (60) days Kirin shall, irrespective of its own
business and accounting methods, pay to the Company the royalties payable for
such semiannual period.
(c) Kirin shall furnish whatever additional information the Company
may reasonably prescribe from time to time to enable the Company to ascertain
which EPO sold by Kirin or any of its Subsidiaries are subject to the payment of
royalty to the Company, and the amount of royalty payable thereon.
-11-
4.05 Late Payments. Royalty payments provided for in this Agreement shall,
-------------
when overdue, be subject to a late payment charge calculated at an annual rate
of one percent (1%) over the prime rate or successive prime rates in effect in
Los Angeles, California during delinquency; provided, however, that if the
amount of such late payment charge exceeds the maximum permitted by law for such
charge, such charge shall be reduced to such maximum amount.
4.06 Payments. Payment to the Company shall be made in United States
--------
dollars. If any royalty for any semiannual period referred to in Section 4.04 is
computed in Japanese currency, conversion to United States dollars shall be at
the prevailing rate as quoted for the last day of such semiannual period by
leading banks in Tokyo, Japan.
4.07 Taxes. Kirin shall bear all taxes, however, designated, imposed as a
-----
result of the existence or operation of this Agreement, including, but not
limited to, any tax on or measured by, any payment or receipt of payment
hereunder, any registration tax, any tax imposed with respect to the granting or
transfer of licenses or other rights or considerations hereunder, and any tax
which Kirin is required to withhold or deduct from payments to the Company,
except any such tax imposed upon the Company by any governmental entity within
or without the United States.
-12-
ARTICLE V
PATENT APPLICATIONS AND COPYRIGHT REGISTRATIONS
-----------------------------------------------
5.01 Patent Applications. Kirin shall pay the Company's reasonable costs
-------------------
and expenses (including attorney's fees) incurred to file, prosecute and
maintain in force any patent applications or patents of the EPO Technology,
which Kirin shall desire the Company to file, prosecute or maintain in the
Territory; provided, that, to the extent an application or patent includes
subject matter not covering the manufacture, use and sale ofproducts in the
Field of Activity, Kirin shall pay an equitable pro rata share of such expenses.
ARTICLE VI
PATENT, COPYRIGHT AND TRADE SECRET ENFORCEMENT
----------------------------------------------
6.01 Enforcement. Subject to Section 6.03, Kirin shall have the right, but
-----------
not the obligation, to bring, defend and maintain any appropriate suit or action
involving infringement of any patent or copyright, misappropriation of any trade
secret or interference with any other intellectual property right relating to
the EPO Technology that Kirin shall have obtained pursuant to this Agreement.
6.02 Infringements. Subject to Section 6.03, Kirin shall have the right,
-------------
but not the obligation, to bring, defend
-13-
and maintain any appropriate suit or action involving infringement in the Field
of Activity of any patent of the EPO Technology covering only the making, use or
sale or products or the use of processes in the Field of Activity. If Kirin
finds it necessary to join the Company in such suit or action, the Company shall
execute all papers and perform such other acts as may be reasonably required and
may, at its option, be represented by counsel of its choice. Kirin shall pay to
the Company its reasonable expenses (excluding its attorney's fees) in
connection with any such suit or action. Should Kirin lack standing to bring any
such action then Kirin may cause the Company to do so upon first undertaking to
indemnify and hold the Company harmless (to the extent permissible by law) from
all consequent liability and to promptly reimburse all reasonable expenses
(including attorney fees) stemming therefrom. Any amount recovered in any such
action or suit, whether by judgment or settlement, shall be paid to or retained
entirely by Kirin.
6.03. Maintenance of Action. Kirin shall notify the Company of any
---------------------
material infringement in the Field of Activity of any patent within the EPO
Technology covering the making, use or sale of products or the use of processes
both within and outside the Field of Activity and shall provide the Company with
any available evidence of such infringement. The Company and Kirin shall consult
with each other as to the best manner in which to
-14-
proceed. The Company shall have the first right, but no obligation, to bring or
defend any suit or action on any claim involving such infringement of any such
patent of the EPO Technology on such terms relating to reimbursement of
associated costs and expenses as shall be agreed to. If the Company finds it
necessary or desirable to join Kirin in such suit or action, Kirin shall
execute all papers and perform such other acts as may be reasonably required to
do so and may, at its option be represented by counsel of its choice unless the
Company and Kirin otherwise agree, any amount recovered in any such action,
whether by judgment or settlement, after payment to the Company of such
reasonable costs and expenses (excluding attorney's fees), shall be paid to or
retained by Kirin. In the event the Company fails to take action with respect to
such infringement within a reasonable period, no less than six (6) months,
following receipt of such notice and evidence, Kirin shall have the right to
bring, defend and maintain any appropriate suit or action involving such
infringement in the Field of Activity. If Kirin finds it necessary to join the
Company in such suit or action, the Company shall execute all papers and perform
such other acts as may be reasonably required and may, at its option, be
represented by counsel of its choice. Kirin shall pay to the Company the
reasonable expenses of the Company (excluding its attorney's fees) in connection
with any such suit or action. Any amount recovered in any such action or suit,
whether by judgement or
-15-
settlement, after payment to the Company of such reasonable costs and expenses
(excluding attorney's fees), shall be paid to or retained entirely by Kirin.
ARTICLE VII
-----------
TERM AND TERMINATION
--------------------
7.01. Term. Unless sooner terminated as provided below, the license and
----
rights granted under Sections 2.01 and 2.02 hereof under patents shall continue
with respect to each patent of the EPO Technology for the life of that patent.
7.02. Effective Date. This Agreement (including the license and rights
--------------
granted under Sections 2.01 and 2.02 hereof) shall come into effect as of the
date hereof and shall remain in full force and effect until the earlier of (a)
the liquidation or dissolution of the Company, or (b) termination pursuant to
either Section 7.03 or 7.04.
7.03. Default. In the event that a Party (the "Defaulting Party") shall (a)
-------
fail to make any payment hereunder when and as due, or otherwise default in its
obligations hereunder and fail to remedy such default within sixty (60) days
after such default shall have been called to its attention by notice from
another Party, (b) become bankrupt or insolvent, or file a petition in
bankruptcy or make a general assignment for the benefit of creditors or
otherwise acknowledge insolvency, or
-16-
be adjudged bankruptcy, (c) go or be placed in a process of complete liquidation
other than for an amalgamation or reconstruction, or (d) suffer the appointment
of a receiver for any substantial portion of its business who shall not be
discharged within sixty (60) days after his appointment, then, and in any such
event, any other Party, at its option, may terminate its obligations to and the
rights of the Defaulting Party under this Agreement upon ten (10) days' written
notice to the Defaulting Party, which termination shall be effective as of the
occurrence of the event giving rise to the option to terminate.
7.04. Survival. Notwithstanding the termination of a Party's obligations to
--------
or the rights of the Defaulting Party under this Agreement in accordance with
the provisions of Sections 7.02, 7.03, the provisions of Section 3.02, this
Section 7.04 and Article VIII hereof shall survive such termination and continue
in full force and effect for an indefinite term. Upon termination of this
Agreement for any reason, and without limitation of other remedies, Kirin shall
immediately return to the Company (to the extent such return is technically
feasible) all EPO Technology in the possession of Kirin or its Subsidiaries, or
of which Amgen shall have the right to regain possession or, at the sole
election of the Company, shall destroy such EPO Technology (to the extent
technically feasible).
-17-
ARTICLE VIII
------------
INFRINGEMENTS
-------------
8.01 Infringements. In the event that Kirin is charged with infringement
-------------
or unauthorized use of the alleged patent rights or proprietary rights of others
by reason of the exploitation by Kirin of EPO Technology or any component
thereof, then the Company shall indemnify and hold Kirin harmless from such
claim to the full extent of any damage recovery with respect to such claim and
legal costs incurred in Kirin's defense.
ARTICLE IX
----------
CONSENTS AND APPROVALS
----------------------
9.01. Best Efforts. The parties hereto shall use their best efforts to
------------
obtain as soon as practicable any and all consents, approvals, orders or
authorizations required to be obtained from any governmental authority with
respect to the provisions hereof.
-18-
ARTICLE X
---------
NOTICE
------
10.01. Company Notice. All materials to the Company under this Agreement
--------------
shall be in writing and sent to:
Kirin-Amgen, Inc.
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
Attn: Corporate Secretary
With a copy to: Joel S. Marcus, P.C.
Musick, Peeler & Garrett
One Wilshire Boulevard
Los Angeles, CA 90017
10.02. Kirin Notice. All notices to Kirin under this Agreement shall be in
------------
writing and sent to:
Senior Vice President
KIRIN BREWERY CO., LTD.
26-1, Jingumae 6 Chome
Shiguya-Ku, Tokyo 150
Japan
Telex No.: 242-5401 KIRINBJ
10.03. Changes. The addresses given above may be changed by notice as
-------
specified above.
10.04. Notice Deemed Given. Notices required or permitted hereunder and
-------------------
sent as specified above shall be deemed
-19-
given (a) immediately upon personal delivery, (b) one (1) business day after
notice given by telegram or telex, and (c) ten (10) business days after the date
of posting notice, sent by registered or certified mail.
ARTICLE XI
----------
MISCELLANEOUS
-------------
11.01. Entire Agreement. This Agreement, together with any other
----------------
written agreements between the parties hereto, set forth the entire agreement of
the parties with respect to the subject matter hereof and may not be modified
except by a writing signed by authorized representatives of the parties hereto.
11.02. Headings. Article and section headings in this Agreement are
--------
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
11.03. Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different parties hereto in separate
counterparts each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts of this Agreement taken together shall
constitute but one and the same instrument.
11.04 Force Majeure. It is agreed that each of the Parties hereto is
-------------
excused from performing such acts as are
-20-
required hereunder as may be prevented by or whose purpose is frustrated by
Force Majeure. The Party so affected shall give notice to the other Party in
writing promptly and thereupon shall be excused from such of its obligations
hereunder as it is unable to perform on account of the Force Majeure throughout
the duration thereof plus a period of thirty (30) days. Notwithstanding the
foregoing, should an event of Force Majeure remain in effect for a period of six
(6) months, then in such event, the Company and Kirin hereby agree to promptly
renegotiate the terms of this Agreement, and if no such agreement can be reached
within sixty (60) days of such six (6) month period, the party not so effected
by the Force Majeure shall have the option to terminate this Agreement and if
such party so elects then this Agreement shall automatically terminate and be of
no further force or effect.
11.05. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of California.
11.06. Assignment on Written Consent. This Agreement shall be binding
-----------------------------
upon and inure to the benefit of the Company and Kirin and their respective
successors and assigns to the extent it is assignable. This Agreement may not be
assigned in whole or in part by Kirin, except with the prior written consent of
the Company or except as part of the sale of the Company's entire business
relating to the Field of Activity.
-21-
11.07. Severability. In the event any one or more of the provisions
------------
contained in this Agreement shall be invalid, illegal or-unenforceable in any
respect, the validity, legality and/or enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. In such event, such invalid provision or provisions shall be validly
reformed to as nearly approximate the intent of the Parties as possible and if
unreformable, shall be severed and deleted from this Agreement.
11.08. No Waiver. No failure or delay on the part of either Party in
---------
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder or the remedies provided by law.
11.9. Trademarks and Tradenames. The Company grants no rights to
-------------------------
Kirin in any trademarks or tradenames of the Company or of any of its respective
subsidiaries or affiliated companies.
11.10. Indemnity. Kirin hereby (a) releases the Company from any
---------
obligation to defend, indemnify or save Kirin and its agents and employees
harmless from and (b) agrees to defend, indemnify and save the Company harmless
from any and all cost, expenses (including attorneys' fees), liabilities,
damages and claims for any injury or death to persons or damage to or
destruction of property, or other loss, arising out of or in
-22-
connection with any product made, used or sold by Kirin or the use by Kirin of
the EPO Technology furnished pursuant to any provision hereunder, or otherwise
arising out of or related to the performance of this Agreement.
11.11. Other Agreements. Any other provision of this Agreement
----------------
notwithstanding, noting in this Agreement shall obligate the Company to disclose
to Kirin any information or to make available to the Kirin any materials in
violation of an obligation of secrecy or a limitation of use imposed by a third
party from whom such information or materials shall have been received.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives in the manner legally binding
on them as of the date first above written.
KIRIN-AMGEN, INC.
By
Its
KIRIN BREWERY CO., LTD.
By
Its
-23-
AMGEN/KIRIN-AMGEN, INC.
-----------------------
LICENSE AGREEMENT
-----------------
THIS AMGEN/KIRIN-AMGEN, INC. LICENSE AGREEMENT is made this day
of , 1984, by and between KIRIN-AMGEN, INC., a California corporation
("Company"), and AMGEN, a California corporation ("Amgen").
R E C I T A L S
WHEREAS, Amgen has assigned to the Company, perpetually and
irrevocably, certain proprietary technology relating to and useful in the
production and worldwide commercial sale of erythropoietin;
WHEREAS, Amgen, Kirin and the Company have entered into that certain
Shareholders' Agreement, dated May 11, 1984, ("Shareholders' Agreement"), with
respect to the formation of the Company to engage in the development,
manufacture, production and sale of EPO products (as defined in the
Shareholders' Agreement) for human therapeutic use in the Field of Activity (as
defined in the Shareholders' Agreement).
EXHIBIT "K"
WHEREAS, Amgen, Kirin and the Company have entered into a Development
and Supply Agreement of even date herewith (the "Development Agreement"),
pursuant to which Amgen and Kirin will conduct development work for the Company
with regard to certain elements of the Transferred Technology (as hereinafter
defined) and the Company will own the entire right, title and interest in such
technology, patent rights and organisms (including the right to grant the
license to Amgen hereunder);
WHEREAS, Amgen desires to obtain from the Company the EPO Technology
and to acquire a license to such technology, patent rights and organisms in
order to develop, manufacture, market and sell EPO (as hereinafter defined) in
the Field of Activity (as hereinafter defined) in its Territory (as hereinafter
defined) employing such technology; and in view of the Shareholders' Agreement
and the parties' further development activities pursuant to the Development
Agreement, the Company is willing to grant such a license to Amgen; and
WHEREAS, the Company has granted a similar license to Kirin, of even
date herewith (the "Kirin License"), with respect to the exploitation of the EPO
Technology in the country of Japan on substantially the same terms and
conditions contained herein and for the same purposes described herein.
-2-
NOW, THEREFORE, in consideration of the mutual covenants expressed
herein and other good and valuable consideration, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
-----------
1.01 EPO. "EPO" shall have the meaning set forth in the Shareholders'
Agreement.
1.02 EPO Technology. "EPO Technology" shall have the meaning set
--------------
forth in the Shareholders' Agreement.
1.03 EPO Organisms. "EPO Organisms" shall have the meaning set forth
-------------
in the Shareholders' Agreement.
1.04 Territory. "Territory" shall mean the territory composed of the
---------
United States of America, its territories and possessions.
1.05 Field of Activity. "Field of Activity" shall have the meaning
-----------------
set forth in the Shareholders' Agreement.
1.06 Party. "Party" shall mean Amgen or the Company or, when used in
-----
the plural, Amgen and the Company.
1.07 Development Program. "Development Program" shall have the
-------------------
meaning set forth in the Shareholders' Agreement.
1.08 Subsidiary. "Subsidiary" shall mean a corporate entity more than
----------
50%of the voting stock of which is owned or controlled, directly or indirectly,
by Amgen or the Company.
-3-
1.09 Term of Support. "Term of Support" shall have the meaning set
---------------
forth in the Development Agreement.
1.10 Sales Value. "Sales Value" means the gross amount billed by
Amgen and its Subsidiaries, as the case may be, to customers with respect to the
sale or use of EPO Products less: (1) trade and/or quantity discounts to the
extent permitted by law; (2) returns and allowances; and (3) retroactive price
reductions.
1.11 Force Majeure. "Force Majeure" shall have the meaning set forth
-------------
in Article 22 of the Shareholders' Agreement.
ARTICLE II
GRANT OF LICENSE
----------------
2.01 Grant of License. For the purposes of this Agreement and subject
----------------
to the reservations contained in this Article II, the Company hereby grants to
Amgen a sole and exclusive license to all EPO Technology for the limited purpose
of engaging in the Field of Activity and solely for use in the
-4-
manufacture and marketing of EPO in the Territory. Said license shall be
exclusive except as provided in Section 2.03 hereof.
2.02 Rights to Sublicense. The Company also grants to Amgen the right
--------------------
to grant sublicenses within and limited to the scope of the right and license
granted to the Company in Section 2.01 only (a) to any Subsidiary of Amgen, (b)
to customers of Amgen, including marketing and distribution agents, in
connection with sales of EPO to such customers, (c) to a single manufacturer of
EPO, other than Amgen or any Subsidiary, for the account of Amgen, and (d) to
licensees of Amgen under patents, know-how or materials owned by Amgen to the
extent such licensees require any such sublicense in order to practice the
patents or know-how or to use the materials that are the subject of the license
from Amgen; provided, however, that no sublicense shall be granted under clause
(c) or (d) hereof without the prior written consent (not to be unreasonably
withheld) ofthe Company. Any sublicensees of Amgen shall undertake in writing to
be bound by the provisions of Section 3.02 hereof to the same extent Amgen is
bound. Amgen shall notify the Company of the identify of each sublicensee to
whom a sublicense is granted and provide the Company a true copy of such
sublicense. In the event that the license granted to Amgen hereunder is
terminated at any time, the Company shall have the option to terminate or to
have Amgen assign to the Company, retroactive to such termination, any
sublicenses granted hereunder by Amgen to any Subsidiary of
-5-
Amgen. Amgen shall include, in all its sublicenses granted hereunder to any
Subsidiary of Amgen, provisions for such termination and assignment.
2.03 Kirin License. The Company reserves the right to grant licenses
-------------
to utilize the EPO Technology to Kirin in accordance with the terms of the Kirin
License.
2.04 Other Licenses. The Company reserves the right to grant licenses
--------------
to utilize the EPO Technology in the manner provided in the Shareholders'
Agreement.
2.05 No License Fee. Except as provided in Article IV, there shall be
--------------
no license fee paid to the Company by Amgen for the grant of the license
described in this Article II.
ARTICLE III
DISCLOSURE
----------
3.01 Disclosure.
----------
(a) The Company shall, in accordance with the Shareholders'
Agreement and the Development Agreement during the Term of Support, reasonably
disclose and deliver to Amgen all EPO Technology in sufficient detail to permit
Amgen to employ such data for the purposes provided herein.
(b) Amgen shall, during the Term of Support, have the right to
attend and participate in the Company's technical
-6-
meetings, conduct plant visits at reasonable intervals and receive information
concerning the EPO Technology.
3.02 Confidentiality.
---------------
(a) Any secret or confidential EPO Technology which is disclosed
to Amgen pursuant to this Agreement or the Shareholders' Agreement, shall be
designated as confidential information in the following manner:
(i) If the disclosure is in written form, by prominently
marking or stamping each document containing such information with a notice
indicating the confidential and proprietary nature of the information; and
(ii) If the disclosure is in oral form, by orally stating at
the time of such disclosure that the information disclosed is confidential and
proprietary and by delivering to Amgen within fifteen (15) days of the oral
disclosure written notice confirming the confidential and proprietary nature of
the information.
(b) Except to the extent expressly authorized by this Agreement,
the Shareholders' Agreement, the Development Agreement or by other prior written
consent of the Company for the term of this Agreement and thereafter, Amgen
shall keep completely confidential and shall not publish or otherwise disclose
to others and shall not use any secret or confidential EPO Technology disclosed
or provided to Amgen by the Company. For the purposes of this Agreement, EPO
Technology shall be
-7-
deemed not secret or confidential to the extent, and only to the extent, that
it:
(i) was known to Amgen at the time of its disclosure and
not otherwise subject to an obligation of Amgen to keep such
information confidential;
(ii) was generally available to the public or was
otherwise part of the public domain at the time of its disclosure;
(iii) became generally available to the public or became
otherwise part of the public domain after its disclosure and other than
through any act or omission or Amgen in breach of this Agreement; or
(iv) became known to Amgen after its disclosure (A) from a source
other than the Company (including from independent development by Amgen), (B)
other than from a third party who had an obligation to the Company not to
disclose such information to others, and (C) other than under an obligation of
confidentiality. Amgen may disclose any EPO Technology to the extent such
disclosure or delivery is necessary for Amgen to comply with laws or
regulations, or to make, use or sell under any license granted hereunder by the
Company or to sublicense others to do so; provided, that Amgen shall give the
Company reasonable advance notice of such proposed disclosure or delivery, shall
use its
-8-
best efforts to secure confidential treatment of the EPO Technology to be
disclosed and shall advise the Company in writing of the manner in which
that was done.
(c) The obligation of confidentiality imposed by this Section
3.02 shall survive termination of this Agreement for any reason whatsoever.
3.03 EPO Organisms.
-------------
(a) The Company shall during the Term of Support provide to
Amgen such EPO Organisms as Amgen requests and as are reasonably required for
Amgen's business within the Field of Activity, solely for use by Amgen during
the period of and under the terms of the right to use such EPO Organisms granted
by the Company to Amgen in Sections 2.01 and 2.02, above.
(b) The license granted herein to Amgen with respect to the EPO
Organisms shall be limited solely to the use by Amgen of such EPO Organisms in
the Field of Activity. Except as expressly authorized by this Agreement or by
other prior written consent of the Company, for the term of this Agreement and
thereafter, Amgen shall not deliver, transmit or provide to any person other
than to a sublicensee under a license granted in accord in Section 2.02, and
shall not use, any of the Licensed Organisms owned by the Company, or authorize,
cause or aid anyone else to do so. Except for Sections 2.01 and 2.02, above,
nothing in this Agreement shall be deemed to give Amgen any right or license to
use, manufacture, replicate or reproduce any of the
-9-
Licensed Organisms owned by the Company, or to authorize, aid, or cause others
so to do (although the Company may grant such rights to Amgen pursuant to
Section 1.04 of the Amgen Assignment).
ARTICLE IV
ROYALTY
-------
4.01 Royalty. Amgen shall pay to the Company a royalty, at the
-------
applicable rate hereinafter specified, on EPO which is sold by Amgen or any of
its Subsidiaries in the Territory while any license acquired hereunder by Amgen
with respect to EPO shall remain in force, whether or not such Subsidiaries are
sublicensed pursuant to Section 2.05, such royalty rate to be applied to the
Sales Value of such EPO. The royalty rate applicable to the EPO is five percent
(5%) of the Sales Value.
4.02 Sales to Subsidiaries. No royalties shall be payable in respect
---------------------
of any sale of EPO as between Amgen and any Subsidiary, but any resale of such
EPO, or use thereof to manufacture a product for sale by Amgen and any such
Subsidiary shall require the payment of a royalty hereunder to the Company.
4.03 Records. Amgen shall keep full, complete and accurate records
-------
with regard to the sale of EPO sufficient to enable the Company to verify the
accuracy of the statements required by Section 4.04(a) hereof. The Company shall
have the right through its accredited auditing representatives to make an
-10-
examination and audit, during normal business hours, not more frequently than
annually, of all such records and such other records and accounts as may under
recognized accounting practices contain information bearing upon the amount of
royalty payable to it under this Agreement. Prompt adjustment shall be made by
the proper party to compensate for any errors or omissions disclosed by such
examination or audit. Neither such right to examine and audit nor the right to
receive such adjustment shall be affected by any statement to the contrary,
appearing on checks or other-wise, unless such statement appears in a letter,
signed by the party having such right and delivered to the other party,
expressly waiving such right.
4.04 Terms of Accounting.
-------------------
(a) Within sixty (60) days after the end of each semiannual
period ending on June 30th or December 31st, commencing with the semiannual
after the first sale of EPO by Amgen, Amgen shall furnish to the Company a
statement, in form acceptable to the Company, certified by a responsible
official of Amgen showing all EPO sold during such semiannual period, the Sales
Value of-such EPO and the amount of royalty payable thereon (or if no EPO has
been so sold, showing that fact).
(b) Within such sixty (60) days Amgen shall, irrespective of
its own business and accounting methods, pay to the Company the royalties
payable for such semiannual period.
-11-
(c) Amgen shall furnish whatever additional information the
Company may reasonably prescribe from time to time to enable the Company to
ascertain which EPO sold by Amgen or any of its Subsidiaries are subject to the
payment of royalty to the Company, and the amount of royalty payable thereon.
4.05 Late Payments. Royalty payments provided for in this Agreement
-------------
shall, when overdue, be subject to a late payment charge calculated at an annual
rate of one percent (lg) over the prime rate or successive prime rates in effect
in Los Angeles, California during delinquency; provided, however, that if the
amount of such late payment charge exceeds the maximum permitted by law for such
charge, such charge shall be reduced to such maximum amount.
4.06 Payments. Payment to the Company shall be made in United States
--------
dollars.
4.07 Taxes. Amgen shall bear all taxes, however designated, imposed
-----
as a result of the existence or operation of this Agreement, including, but not
limited to, any tax on or measured by, any payment or receipt of payment
hereunder, any registration tax, any tax imposed with respect to the granting or
transfer of licenses or other rights or considerations hereunder, and any tax
which Amgen is required to withhold or deduct from payments to the Company,
except any such tax imposed upon the Company by any governmental entity within
or without the United States.
-12-
ARTICLE V
PATENT APPLICATIONS AND COPYRIGHT REGISTRATIONS
5.01 Patent Applications. Amgen shall pay the Company's reasonable
-------------------
costs and expenses (including attorney's fees) incurred to file, prosecute and
maintain in force any patent applications or patents of the EPO Technology which
Amgen shall desire the Company to file, prosecute or maintain in the Territory;
provided, that, to the extent an application or patent includes subject matter
not covering the manufacture, use and sale of products in the Field of Activity,
Amgen shall pay an equitable pro rata share of such expenses.
ARTICLE VI
PATENT, COPYRIGHT AND TRADE SECRET ENFORCEMENT
6.01 Enforcement. Subject to Section 6.03, Amgen shall have the
-----------
right, but not the obligation, to bring, defend and maintain any appropriate
suit or action involving infringement of any patent or copyright,
misappropriation of any trade secret or interference with any other intellectual
property right relating to the EPO Technology that Amgen shall have obtained
pursuant to this Agreement.
6.02 Infringements. Subject to Section 6.03, Amgen shall have the
-------------
right, but not the obligation, to bring, defend
-13-
and maintain any appropriate suit or action involving infringement in the Field
of Activity of any patent of the EPO Technology covering only the making, use or
sale of products or the use of processes in the Field of Activity. If Amgen
finds it necessary to join the Company in such suit or action, the Company shall
execute all papers and perform such other acts as may be reasonably required and
may, at its option, be represented by counsel of its choice. Amgen shall pay to
the Company its reasonable expenses (excluding its attorney's fees) in
connection with any such suit or action. Should Amgen lack standing to bring any
such action then Amgen may cause the Company to do so upon first undertaking to
indemnify and hold the Company harmless (to the extent permissible by law) from
all consequent liability and to promptly reimburse all reasonable expenses
(including attorney fees) stemming therefrom. Any amount recovered in any such
action or suit, whether by judgment or settlement, shall be paid to or retained
entirely by Amgen.
6.03 Maintenance of Action. Amgen shall notify the Company of any
---------------------
material infringement in the Field of Activity of any patent within the EPO
Technology covering the making, use or sale of products or the use of processes
both within and outside the Field of Activity and shall provide the Company with
any available evidence of such infringement. The Company and Amgen shall consult
with each other as to the best manner in which to
-14-
proceed. The Company shall have the first right, but no obligation, to bring or
defend any suit or action on any claim involving such infringement of any such
patent of the EPO Technology on such terms relating to reimbursement of
associated costs and expenses as shall be agreed to. If the Company finds it
necessary or desirable to join Amgen in such suit or action, Amgen shall execute
all papers and perform such other acts as may be reasonably required to do so
and may, at its option be represented by counsel of its choice unless the
Company and Amgen otherwise agree, any amount recovered in any such action,
whether by judgment or settlement, after payment to the Company of such
reasonable costs and expenses (excluding attorney's fees), shall be paid to or
retained by Amgen. In the event the Company fails to take action with respect to
such infringement within a reasonable period, no less than six (6) months,
following receipt of such notice and evidence, Amgen shall have the right to
bring, defend and maintain any appropriate suit or action involving such
infringement in the Field of Activity. If Amgen finds it necessary to join the
Company in such suit- or action, the Company shall execute all papers and
perform such other acts as may be reasonably required and may, at its option, be
represented by counsel of its choice. Amgen shall pay to the Company the
reasonable expenses of the Company (excluding it attorney's fees) in connection
with any such suit or action. Any amount recovered in any such action or suit,
whether by judgment or settlement,
-15-
after payment to the Company of such reasonable costs and expenses (excluding
attorney's fees), shall be paid to or retained entirely by Amgen.
ARTICLE VII
TERM AND TERMINATION
--------------------
7.01 Term. Unless sooner terminated as provided below, the license
----
and rights granted under Sections 2.01 and 2.02 hereof under patents shall
continue with respect to each patent of the EPO Technology for the life of that
patent.
7.02 Effective Date. This Agreement (including the license and rights
--------------
granted under Sections 2.01 and 2.02 hereof) shall come into effect as of the
date hereof and shall remain in full force and effect until the earlier of (a)
the liquidation or dissolution of the Company, or (b) termination pursuant to
either Section 7.03 or 7.04.
7.03 Default. In the event that a Party (the "Defaulting Party")
-------
shall (a) fail to make any payment hereunder when and as due, or otherwise
default in its obligations hereunder and fail to remedy such default within
sixty (60) days after such default shall have been called to its attention by
notice from another Party, (b) become bankrupt or insolvent, or file a petition
in bankruptcy or make a general assignment for the benefit of creditors or
otherwise acknowledge insolvency, or
-16-
be adjudged bankruptcy, (c) go or be placed in a process of complete liquidation
other than for an amalgamation or reconstruction, or (d) suffer the appointment
of a receiver for any substantial portion of its business who shall not be
discharged within sixty (60) days after his appointment, then, and in any such
event, any other Party, at its option, may terminate its obligations to and the
rights of the Defaulting Party under this Agreement upon ten (10) days' written
notice t the Defaulting Party, which termination shall be effective as of the
occurrence of the event giving rise to the option to terminate.
7.04 Survival. Notwithstanding the termination of a Party's
--------
obligations to or the rights of the Defaulting Party under this Agreement in
accordance with the Provisions of Sections 7.02, 7.03, the provisions of Section
3.02, this Section 7.04 and Article VIII hereof shall survive such termination
and continue in full force and effect for an indefinite term. Upon termination
of this Agreement for any reason, and without limitation of other remedies,
Amgen shall immediately return to the Company (to the extent such return is
technically feasible) all EPO Technology in the possession of Amgen or its
Subsidiaries, or of which Amgen shall have the right to regain possession or, at
the sole election of the Company, shall destroy such EPO Technology (to the
extent technically feasible).
-17-
ARTICLE VIII
INFRINGEMENTS
-------------
8.01 Infringements. In the event that Amgen is charged with
-------------
infringement or unauthorized use of the alleged patent rights or proprietary
rights of others by reason of the exploitation by Amgen of EPO Technology or any
component thereof, then the Company shall indemnify and hold Amgen harmless from
such claim to the full extent of any damage recovery with respect to such claim
and legal costs incurred in Amgen's defense.
ARTICLE IX
CONSENTS AND APPROVALS
----------------------
9.01 Best Efforts. The parties hereto shall use their best efforts to
------------
obtain as soon as practicable any and all consents, approvals, orders or
authorizations required to be obtained from any governmental authority with
respect to the provisions hereof.
ARTICLE X
NOTICE
------
10.01 Company Notice. All materials to the Company under this Agreement
--------------
shall be in writing and sent to:
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Kirin-Amgen, Inc.
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
Attn: Corporate Secretary
With a copy to: Joel S. Marcus, P.C.
Musick, Peeler & Garrett
One Wilshire Boulevard
Los Angeles, CA 90017
10.02 Amgen Notice. All notices to Amgen under this Agreement shall
be in writing and sent to:
Amgen
1900 Oak Terrace Lane
Thousand Oaks, CA 91320
Attn: Secretary
With a copy to: Alan C. Mendelson
Cooley, Godward, Castro,
Huddleson & Tatum
5 Palo Alto Square
Suite 400
Palo Alto, CA 94306
10.03 Changes. The addresses given above may be changed by notice as
specified above.
10.04 Notice Deemed Given. Notices required or permitted hereunder
-------------------
and sent as specified above shall be deemed given (a) immediately upon personal
delivery, (b) one (1) business day after notice given by telegram or telex, and
(c) ten (10) business days after the date of posting notice, sent by registered
or certified mail.
-19-
ARTICLE XI
MISCELLANEOUS
-------------
11.01 Entire Agreement. This Agreement, together with any other
----------------
written agreements between the parties hereto, set forth the entire agreement of
the parties with respect to the subject matter hereof and may not be modified
except by a writing signed by authorized representatives of the parties hereto.
11.02 Headings. Article and section headings in this Agreement are
--------
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
11.03 Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different parties hereto in separate
counterparts each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts of this Agreement taken together shall
constitute but one and the same instrument.
11.04 Force Majeure. It is agreed that each of the Parties hereto is
-------------
excused from performing such acts as are required hereunder as may be prevented
by or whose purpose is frustrated by Force Majeure. The Party so affected shall
give notice to the other Party in writing promptly and thereupon shall be
excused from such of its obligations hereunder as it is unable to perform on
account of the Force Majeure throughout the
-20-
duration thereof plus a period of thirty (30) days. Notwithstanding the
foregoing, should an event of Force Majeure remain in effect for a period of six
(6) months, then in such event, the Company and Amgen hereby agree to promptly
renegotiate the terms of this Agreement, and if no such agreement can be reached
within sixty (60) days of such six (6) month period, the party not so effected
by the Force Majeure shall have the option to terminate this Agreement and if
such party so elects then this Agreement shall automatically terminate and be of
no further force or effect.
11.05 Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of California.
11.06 Assignment on Written Consent. This Agreement shall be binding
-----------------------------
upon and inure to the benefit of the Company and Amgen and their respective
successors and assigns to the extent it is assignable. This Agreement may not be
assigned in whole or in part by Amgen, except with the prior written consent of
the Company or except as part of the sale of the Company's entire business
relating to the Field of Activity.
11.07 Severability. In the event any one or more of the provisions
------------
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and/or enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. In
-21-
such event, such invalid provision or provisions shall be validly reformed to as
nearly approximate the intent of the Parties as possible and if unreformable,
shall be severed and deleted from this Agreement.
11.08 No Waiver. No failure or delay on the part of either Party in
---------
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder or the remedies provided by law.
11.09 Trademarks and Tradenames. The Company grants no rights to
-------------------------
Amgen in any trademarks or tradenames of the Company or of any of its respective
subsidiaries or affiliated companies.
11.10 Indemnity. Amgen hereby (a) releases the Company from any
---------
obligation to defend indemnify or save Amgen and its agents and employees
harmless from and (b) agrees to defend, indemnify and save the Company harmless
from any and all cost, expenses (including attorneys' fees), liabilities,
damages and claims for any injury or death to persons or damage to or
destruction of property, or other loss, arising out of or in connection with any
product made, used or sold by Amgen or the use by Amgen of any EPO Technology
furnished pursuant to any provision hereunder, or otherwise arising out of or
related to the performance of this Agreement.
-22-
11.11 Other Agreements. Any other provision of this Agreement
----------------
notwithstanding, nothing in this Agreement shall obligate the Company to
disclose to Amgen any information or to make available to the Amgen any
materials in violation of an obligation of secrecy or a limitation of use
imposed by a third party from whom such information or materials shall have been
received.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives in the manner legally binding
on them as of the date first above written.
KIRIN-AMGEN, INC.
By
Its
AMGEN
By
Its
-23-
AMENDMENT NO. 1
---------------
TO
--
KIRIN-AMGEN, INC./AMGEN
-----------------------
EPO LICENSE AGREEMENT
---------------------
THIS AMENDMENT NO. 1 ("Amendment No. 1") TO THAT CERTAIN KIRIN-AMGEN
INC./AMGEN EPO LICENSE AGREEMENT ("License Agreement"), is made and entered into
this 20th day of October, 1989, by and between AMGEN, INC., a Delaware
corporation ("Amgen"), and KIRIN-AMGEN, INC., a California corporation
("corporation").
R E C I T A L S
A. Amgen and Corporation have previously executed that certain
License Agreement regarding EPO.
B. The parties desire to incorporate certain changes into the License
Agreement pursuant to this Amendment No. 1.
NOW, THEREFORE, it is agreed as follows:
1. Article I, Section 1.06 at page 3 of the License Agreement is hereby
deleted and the following substituted in lieu thereof:
"Sales Value. 'Sales Value' shall mean the amount billed by Amgen
-----------
or an affiliate from the sale for commercial use of EPO Products to
independent third parties less the following amounts included in the
billed amount: (i) discounts, including cash discounts, or rebates
actually allowed or granted from the billed amount, (ii) credits or
allowances actually granted upon claims or returns regardless of the
party requesting the return, (iii) freight charges paid for delivery,
and (iv) taxes or other government charges levied on or measured by
the billed amount whether absorbed by the billing or the billed
party."
2. Except to the extent as provided herein, the provisions of the
License Agreement are hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 1
to be executed as of the first day written above.
AMGEN, INC., a Delaware
corporation,
By: /s/ Gordon M. Binder
Gordon Binder
its Chief Executive Officer
"Amgen"
KIRIN-AMGEN, INC.
a California corporation,
By: /s/ Yasushi Yamamoto
Yasushi Yamamoto, Chairman
"Corporation"
-2-