AMENDMENT TO THE RESEARCH AND LICENSE AGREEMENT
CONFIDENTIAL TREATMENT
REQUESTED . Confidential portions of this document have been redacted
and have been separately filed with the Commission.
Exhibit
10.45
AMENDMENT
TO THE RESEARCH AND LICENSE AGREEMENT
This
Amendment effective as of April 1 2008 (the “Effective Date”) of the
Research and License Agreement dated January 7, 2002 (the “Research and License
Agreement”) entered into by and between Yeda Research And Development
Company Ltd., a company duly registered under the laws of Israel of X.X. Xxx 00,
Xxxxxxx 00000, Xxxxxx (“Yeda”), Mor Research
Applications Ltd. a company duly registered under the laws of Israel and having
its principal place of business at 00 Xxxxxxx Xxxxxx., Kiryat Xxxxxxx, X.X. Xxx
0000 Xxxxxx Xxxxx 00000 (“Mor”) (Yeda and Mor shall be
collectively referred to as the “Licensors”); Biogal Ltd.
(under its previous name HaverfieId Ltd)., a company duly registered under the
laws of Gibraltar and having its principal place of business at Valmet Nominees
Limited Xxxxxx 0X & 0X 00 Xxxx Xxxxx Xxxxxxxxx (the “Company”) and Biogal Advanced
Biotechnology Ltd., a company duly registered under the laws of the State of
Israel and having its principal place of business at 0 Xxxxxxxx Xx. Xxxx Xxxxx,
Xxxxx Xxx, Xxxxxx 00000 (“Biogal Israel”).
WHEREAS,
the Licensors, Biogal Israel and the Company desire to amend the Research and
License Agreement (as has been several times amended during the years), in
accordance with the terms and conditions contained herein.
All terms
used herein and not defined shall have the meaning ascribed to them in the
Research and License Agreement.
NOW THEREFORE, the Parties hereto
hereby agree as follows:
1.
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As
of date, the principal amount of the Annual License Fee due to be paid to
Yeda consist of ***** (the “Accumulated
Annual Fee”). As previously agreed by Yeda and Company, such
Accumulated Annual Fee bears an accumulated interest at the rate of *****
(the “Interest”). The Accumulated
Annual Fee plus accrued Interest was due to be paid to Yeda by the Company
no later than *****.
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2.
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Commencing
upon the Effective Date hereof, the Accumulated Annual Fee plus accrued
Interest thereon (the “Due Payment”) shall be
paid to Yeda within ***** of recipe of the proceeds from an Entitling
Event, as such term is defined in the Research and License
Agreement.
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The Due
Payment shall be paid in addition to any other amount payable to Yeda upon the
closing of an Entitling Event, as specified in Section 10.5 of the Research and
License Agreement.
3.
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Commencing
upon the Effective Date hereof, Section 10.2 of the Research and License
Agreement, as amended from time to time, shall be replaced in its entirety
with the following provisions;
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* *****Confidential material redacted and
filed separately with the Commission.
(i) the
then current market conditions for such sale or, in the absence of such current
market conditions, according to market conditions for sale of products similar
to the Products; and
(ii) with
respect to sales by the Company and for a Sublicensee, as applicable, to any
Affiliated Entity of the Company or of such Sublicensee, as the case may be, the
term, “Net Sales” shall
mean the higher of (A) “Net
Sales”, as defined in paragraph (a) above; and (B) the total amount
invoiced by such Affiliated Entity on resale to an independent third party
purchaser after the deductions specified in subparagraphs (i) and (ii) above, to
the extent applicable
4.
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The
Royalty Payment as aforesaid shall be paid in lieu of the Annual Licensee
Fees referred to in Section 10.2 of the Research and License Agreement,
which shall not be payable as of the Effective Date. The Royalty Payment
shall be made by the Company (also on behalf of Sublicensees) for as long
as the License under the Research and License Agreement is in
force.
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5.
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The
Company undertakes that all sales of Products by the Company and each
Sublicensee shall be for cash consideration
only.
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6.
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In
calculating Net Sales all amounts shall be expressed in US Dollars and any
amount received
in a currency other than US Dollars shall be translated into US Dollars,
for the purposes of calculation, in accordance with the applicable
exchange rate between the US Dollar and such currency on the date of such
receipt.
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“10.2 In
consideration for the grant of the License, the Company shall pay Yeda, 1% (one
percent) of Net Sales by or on behalf of the Company or by or on behalf of any
Sublicensee (the “Royalty
Payment”).
The term
“Net Sales” shall mean
the total amount invoiced by the Company and the total amount invoiced by each
Sublicensee in connection with the sale of Products (for the removal of doubt,
whether such sales are made before or after the First Commercial Sale of any
Product in any country); in all cases after deduction of:
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(a)
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sales
taxes (including value added taxes) to the extent applicable to such sale
and included in the invoice in respect of such
sale;
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(b)
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credits
or allowances, if any, actually granted on account of price adjustments,
recalls, rejections or returns of Products previously
sold;
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(c)
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Bad
Debts, meaning invoices which have been recognized by the Company as bad
debts and which amounts the Company’s accountants have agreed to include
as bad debts in the Company’s financial statements in according with
generally accepted accounting principles and in accordance with Israeli
income tax regulations, and which derive from Net Sales in respect of
which royalties were paid by the Company pursuant hereunder provided
that:
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(i) with
respect to sales which are not at arms-length and/or are not in the ordinary
course of business and/or are not according to then current market conditions
for such a sale, the term “Net
Sales” shall mean the total amount that would have been due in an
arms-length sale made in the ordinary course of business and according
to
7.
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The
Royalty payment shall be paid to Yeda in US Dollars no later than 45
(forty five) days after the end of each calendar quarter, commencing with
the first calendar quarter in which any Net Sales are made by the
Company.
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8.
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Failure
by the Company to fulfill its obligations under the terms of this
Amendment shall be considered as a material breach of the Research and
License Agreement, and Yeda shall be entitled, notwithstanding clause
14.2.1 to the Research and License Agreement, to immediately terminate the
Research and License Agreement and the License by serving a letter of
termination on the Company.
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9.
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For
the avoidance of doubt, Biogal Advanced Biotechnology Ltd. hereby
undertakes to serve as guarantor for the full and timely performance by
the Company of all of its obligations hereunder, including without
limitation, the full and prompt payment of the total sum of the Due
Payment and the Royalty Payments.
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10.
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This
Amendment shall be effective upon execution by all those signatories
thereof, effective
as of the Effective Date.
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11.
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Except
for those provisions, which are amended in accordance with the terms of
this Amendment, the remainder of the terms and conditions of the Research
and License Agreement, as has been amended from time to time, shall
continue in full force and effect and shall, mutatis mutandis, apply to
this Amendment.
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12.
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In
any event of a conflict between and conditions contained in this Amendment
and the Research and License Agreement, as has been amended from time to
time, the terms contained in this Amendment shall
govern.
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13.
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This
Amendment may be executed in any number of counterparts, each of which
shall be deemed an original and enforceable against the parties actually
executing such counterpart, and all of which together shall constitute one
and the same instrument. Facsimile signatures shall be binding as original
signatures
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IN
WITNESS WHEREOF the parties have signed this Agreement as of the date first
hereinabove set forth.
YEDA
RESEARCH AND
DEVELOPMENT
COMPANY LTD.
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MOR
RESEARCH APPLICATIONS
LTD.
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By: __________________________________________
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By: __________________________________________
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Title: _________________________________________
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Title: _________________________________________
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BIOGAL
LTD.
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BIOGAL
ADVANCED BIOTECHNOLOGY
LTD.
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By: __________________________________________
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By: __________________________________________
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Title: _________________________________________
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Title: _________________________________________
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