EXHIBIT 10.35
PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED (DESIGNATED BY AN ASTERIX (*) AND
WHITE SPACE) AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT DATED AUGUST 21, 1997;
FILE NO. 0-15609
SECOND AMENDMENT TO
DEVELOPMENT AND LICENSE AGREEMENT
Effective as of January 17, 1997, Agouron Pharmaceuticals, Inc., a California
corporation ("Agouron") and Japan Tobacco Inc., a Japanese corporation ("JT"),
for good and valuable consideration, agree as follows:
(Terms containing an initial capitalized letter, except as explicitly otherwise
indicated, shall have the meanings stated in the Development and License
Agreement, as defined below).
BACKGROUND
Agouron and JT entered into a Development and License Agreement dated December
1, 1994 and the First Amendment to the Development and License Agreement. The
Development and License Agreement, as amended is hereinafter referred to as the
"D&L Agreement."
The parties have conducted collaborative development activities pursuant to the
terms of the D&L Agreement.
Agouron and JT contemplated that a joint venture, to be formed pursuant to the
terms of the D&L Agreement, would act as the licensor to implement the
commercialization of the Compound and/or Products in the Joint Venture Exclusive
Territories. The parties further contemplated that the joint venture would not
directly conduct actual manufacturing or sales of the Compound and/or Products
but would only manage sublicensing activities for the Compound and/or Products
to a number of sublicensees.
A single third party has been identified which desires to sublicense the Product
in the Joint Venture Exclusive Territories pursuant to the terms of a Letter of
Intent ("LOI") dated January 17, 1997 between such third party (hereinafter
referred to as "Third Party Licensee") and Agouron and JT.
AMENDMENT
Agouron and JT now wish to amend the D&L Agreement as follows:
1. The Joint Venture, as set forth in Attachment 1 to the D&L Agreement,
is hereby retroactively dissolved effective as of January 1, 1996.
2. Upon dissolution of the Joint Venture and notwithstanding any other
provisions of the D&L Agreement, the rights granted to the Joint
Venture shall revert to the parties.
3. Agouron agrees to enter into the LOI under which Agouron will grant to
the Third Party Licensee under its applicable intellectual property
rights the exclusive right, even as to Agouron (with right of
sublicense) to sell the Product in the Field in the Licensed Territory,
as such terms are defined in the LOI.
4. JT agrees to enter into the LOI under which JT will grant to the Third
Party Licensee under its applicable intellectual property rights the
exclusive right, even as to JT, (with right of sublicense) to sell the
Product in the Field in the Licensed Territory, as such terms are
defined in the LOI.
5. Subject to the terms of the D&L Agreement, Agouron and JT will share
obligations and responsibilities related to the license to the Third
Party Licensee. Administration of such license will be undertaken in
accordance with the procedures established by Section 4.01 of the D&L
Agreement by *
6. In the event that the license to the Third Party Licensee terminates or
becomes void in the future, JT and Agouron agree that rights to sell
the Product in the Field in the Joint Venture Exclusive Territories, as
such terms are defined in the LOI, shall *
provided, however, the parties agree to
jointly determine *
7. The provisions of Section 2.01(k) are amended to provide that each
party hereby *
as
such terms are defined in the LOI.
8. Section 5.03 is amended to read in full as follows:
Section 5.03 Premarketing Expenses. Premarketing
Expenses shall mean those
*
Premarketing Expenses shall be deemed to be *
and shall be treated in accordance with Attachment 4 to the
D&L Agreement.
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9. Section 5.04(b) is amended to provide that *
10. Agouron and JT agree to share the * pursuant to
the provisions of Paragraph 29 of the LOI as follows: the first *
the remaining * shall
be shared equally by Agouron and
JT.
11. Except as modified by the terms contained herein, the provisions of
the D&L Agreement shall remain in full force and effect.
AGOURON PHARMACEUTICALS, INC. JAPAN TOBACCO INC.
By: /s/ Xxxx X. Xxxxxxxx, Esq. By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxx X. Xxxxxxxx, Esq. Name: Xxxxxxx Xxxxxxxx
Title: Vice President and Title: Vice President,
General Counsel Pharmaceuticvals Div
Date: 1/17/97 Date: 1/29/1997
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