Exhibit 10.3
SECOND AMENDMENT TO THE ROYALTY AGREEMENT
This Second Amendment, dated as of this 5th day of December 2002 (this
"Second Amendment"), to the Royalty Agreement, dated as of December 26, 2000
(the "Royalty Agreement") is made by and between Cytomedix, Inc. ("Cytomedix" or
the "Reorganized Debtor") and Curative Health Services, Inc. ("Curative").
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the "First Amended Plan of Reorganization of Cytomedix, Inc. (with
All Technical Amendments)" (the "Plan").
WHEREAS, the parties entered into the Royalty Agreement pursuant to the
terms and conditions of an Amended and Restated Asset Purchase Agreement,
effective as of October 12, 2000;
WHEREAS, the parties entered into a First Amendment to the Royalty
Agreement dated April 20, 2001;
WHEREAS, Cytomedix filed a chapter 11 petition for relief on August 7,
2001 in the United States Bankruptcy Court for the Northern District of
Illinois, Eastern Division, Case No. 01-27610 (the "Cytomedix Bankruptcy Case");
WHEREAS, Cytomedix assumed in its bankruptcy case the Royalty Agreement,
as amended, and that certain license agreement with DePuy AcroMed, Inc.
("DePuy");
WHEREAS, on June 27, 2002, the Bankruptcy Court entered an order
confirming the Plan, which became effective on July 11, 2002;
WHEREAS, Article VII.B of the Plan provides that the Reorganized Debtor
has the exclusive right at any time following Plan confirmation to settle any
Disputed Claims; and
WHEREAS, the parties are executing contemporaneously herewith a settlement
agreement that resolves all claims and causes of action between them and desire
to execute this Second Amendment in connection therewith.
NOW, THEREFORE, in consideration of the mutual promises set forth in this
Agreement, the parties agree as follows:
1. Modification of Section 2.3 of the Royalty Agreement. Section 2.3 of
the Royalty Agreement shall be replaced, to read in its entirety as follows:
Section 2.3 Other Payments. Cytomedix shall pay Curative ten percent
(10%) of the aggregate amount received by Cytomedix in connection
with upfront, milestone and/or other similar payments relating to
the Patents (hereinafter the "Non-Royalty Payments"). No later than
five (5) business days following consummation of any agreement with
any third party relating to the right to practice or utilize any of
the Patents (each, an
"Additional License Agreement"), Cytomedix shall provide a copy of
such Additional License Agreement to Curative. Except as expressly
provided in the Royalty Agreement (as amended), Curative shall not
be entitled to any other compensation from Cytomedix or any other
third party in connection with the sale of Procuren and the Future
Products and shall receive no royalty on sales of any other product
of Cytomedix.
2. Agreement Fully Read and Understood. All parties have received
independent legal advice from attorneys of their choice with respect to the
advisability of executing this Agreement, have read it carefully, understand its
contents, and have executed it after independent investigation and without
fraud, duress, or undue influence. No ambiguity in this Agreement shall be
construed against any of the parties to it.
3. Governing Law and Venue. The existence, validity, construction and
operation of this Agreement and all of its terms and covenants shall be
determined in accordance with the laws of the state of Illinois. Any court
proceeding relating to the interpretation or enforcement of this Agreement shall
be brought exclusively in the United States Bankruptcy Court for the Northern
District of Illinois, Case No. 01-27610, and the parties consent to personal
jurisdiction in that Court if such action is necessary.
4. Severability. Any provision of this Agreement held non-enforceable
shall be deemed deleted as narrowly as possible and the Agreement's remaining
terms shall be enforced so as to give effect as nearly as possible to its
overall purpose.
5. Assigns and Successors in Interest. This Agreement shall bind and inure
to the benefit of the parties' heirs, successors, and assigns as if they were
signatories to it.
6. Entire Agreement. The recitals stated above are incorporated by
reference. This Agreement contains the entire agreement of the parties with
respect to its subject matter, and no modification of it shall be binding on
either party unless it is reduced to writing and executed by the party against
whom enforcement is sought.
7. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and which together shall constitute one
document.
AGREED TO AND ACCEPTED BY:
CYTOMEDIX, INC. CURATIVE HEALTH SERVICES, INC.
By: One of Its Attorneys By: One of Its Attorneys
