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***TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(B)4,
200.83 AND 240.24B-2
AMENDMENT TO
DEVELOPMENT, MANUFACTURING
AND MARKETING AGREEMENT
THIS AMENDMENT amends that certain AGREEMENT, dated as of April 1,
1996 (the "Agreement") between XXXXXX HEALTHCARE CORPORATION, a Delaware
corporation with principal offices at Xxx Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx
00000, and CERUS CORPORATION, a Delaware corporation, successor in interest to
STERITECH, INC., a California corporation, with principal offices at 0000
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000, such amendment being effective as of
March 6, 1998.
1. AMENDMENT TO SECTION 3.3(A). Section 3.3(a) is amended to read in
full as follows:
(a) THE RED CELL PROJECT. The approved budget for 1998
for the Red Cell Project is attached hereto as Schedule A. The
parties agree to establish a reasonable budget for subsequent
periods for the Red Cell Project, unless the Management Board
determines to discontinue such Project. Each party shall perform the
respective tasks set forth on Schedule A, except as the Management
Board shall otherwise determine.
(i) All funding of the Red Cell Project was
provided by Cerus, until Regulatory Approval to commence Phase III
clinical trials in the United States or Europe under the Platelet
Agreement (the "Platelet Milestone"). Baxter shall participate in
the Red Cell Project in accordance with this Agreement, including
without limitation, the obligation to share fifty percent (50%) of
the costs and expenses of the Cooperative Development Work incurred
on or after January 1, 1997, and to market and sell the Systems for
Red Cells developed under this Agreement. Subject to Section
3.3.(a)(iii) hereof, Baxter shall pay to Cerus on the date of
achievement of the Platelet Milestone fifty percent (50%) of the
amount expended by Cerus under the Project budget from January 1,
1997 to the date of payment.
(ii) The parties acknowledge that the
Platelet Milestone was achieved on September 30, 1997.
(iii) Notwithstanding the foregoing
provisions of this Section 3.3.(a), to the extent the approved
budget for 1998 for the Red Cell Project exceeds Seven Million Three
Hundred Thousand Dollars ($7,300,000), Cerus will fund all expenses
for the Red Cell Project in 1998 in excess of such amount, up to the
amount of the approved budget
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("Cerus 1998 Excess Expenditures"). To compensate for the Cerus 1998
Excess Expenditures, Baxter will fully fund the first expenditures
under the approved budget for the Red Cell Project for 1999 in an
amount equal to the Cerus 1998 Excess Expenditures, after which the
parties shall equally share the expenses of the Red Cell Project. If
there is for any reason not an approved budget for the Red Cell
Project for 1999, Baxter will fully fund the first expenditures for
1999 under the approved budget for such other Cerus-Baxter program
or programs as Cerus shall designate in an amount equal to the Cerus
1998 Excess Expenditures. If by July 1, 1999, however, there is not
an approved budget for such other Cerus-Baxter program or programs
that is at least equal to such Excess Expenditures, Baxter will
promptly pay to Cerus one-half of the amount by which the Excess
Expenditures exceed the amount of expenditures to be funded by
Baxter under the preceding sentence.
2. AMENDMENT TO SECTION 3.7(B). Section 3.7(b) is amended to read in
full as follows:
(b) RECONCILIATION OF EXPENDITURES. Unless otherwise
agreed, the Management Board shall reconcile actual cash outlays and
expenses approved by the Management Board with respect to a Project
on a semi-annual basis for the Red Cell Project and on an annual
basis for other Projects such that costs have been incurred in the
proportion of fifty percent (50%) by Baxter and fifty (50%) by
Cerus, or such other ratio as is established pursuant to Section
3.7(a). If they are not in such proportion, Cerus will make a cash
payment to Baxter, or Baxter will make a cash payment to Cerus, in
order to achieve such proportion. The payment shall be made in cash
within thirty (30) days following the determination by the
Management Board based upon the reports made pursuant to Section
3.5(a) of this Agreement.
3. SCHEDULE A. The Schedule A referred to in such amended Section
3.3(a) is attached to this Amendment.
IN WITNESS WHEREOF, this Agreement is signed by duly authorized
representatives of each party as of March 6, 1998.
XXXXXX HEALTHCARE CORPORATION CERUS CORPORATION
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx Xxxxx Xxxxxxx X. Xxxxxx
Title: President, Fenwal Division Title: President
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SCHEDULE A
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*CONFIDENTIAL TREATMENT REQUESTED
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