EXHIBIT 10.2
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
AGREEMENT
THIS AGREEMENT (the "Agreement") is made this 8th day of January, 1998,
by and between CoCensys, Inc., a Delaware corporation ("CoCensys"), located
at 000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, and Xxxxxx-Xxxxxxx
Company, a Delaware corporation ("Warner"), located at 000 Xxxxx Xxxx, Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000.
RECITALS
a. The parties entered into that certain amended and restated
Research, Development and Marketing Collaboration Agreement dated October 13,
1997, (the "Collaboration Agreement"), pursuant to which the parties
determined to collaborate in efforts to develop and discover NMDA receptor
sub-type selective antagonists and AMPA-type glutamate receptor antagonists.
b. The parties have determined that a collaboration in the area of
AMPA antagonists would not be beneficial to the parties at this point in time
and desire to amend the Collaboration Agreement to terminate the AMPA
collaboration and add certain key man provisions.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, covenants and conditions contained herein, CoCensys and
Warner hereby agree as follows:
All capitalized terms used herein shall have the meanings given to them
in the Collaboration Agreement.
1. The Collaboration Agreement is hereby amended to add the following as
a new Section 14.6:
"14.6 Key Personnel. CoCensys shall use its best efforts to ensure that [*]
oversees the Research Program on behalf of CoCensys and that [*] devotes no
less than [*] of his time in also overseeing [*] and CoCensys' efforts
relating to the Research Program. In the event that on or before the end
of the term of the Research Program, (A) [*] (i) is physically and mentally
capable of overseeing CoCensys' work under the Research Plan but (ii) for
any reason fails to oversee such work, or (B) [*] (y) is physically and
mentally capable of devoting [*] of his time to overseeing CoCensys' work
under the research plan but (z) for any reason fails to
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devote such time to such work, then in the case of either (A) or (B),
CoCensys shall immediately notify Warner thereof and CoCensys will have
up to [*] after such failure by either [*] to hire a replacement for [*],
as the case may be (the "Search Period"). By notice delivered to
CoCensys during the [*] period after the end of the Search Period,
Warner may voluntarily terminate the Term of the Research Program,
effective [*] after the end of the Search Period, if in its reasonable
scientific opinion or for other reasonable commercial concerns relating
to the conduct of the Research Program it does not approve of the
replacement for [*] hired by CoCensys, then the Term of the Research
Program shall end [*] following the end of the Search Period.
Termination of the Research Program pursuant to the previous sentence
shall be deemed an ordinary termination of the Term of the Research
Program under the first sentence of Section 2.4 and shall not be deemed
early termination upon the election of a party under the second sentence
of Section 2.4 or termination for breach under Section 14.1. Warner
will be required to make any research funding payments that are required
under Section 2.2 that come due on or before the effective date of such
termination, and CoCensys will continue to be obligated to perform its
duties under the Research Program during the Term of the Research
Program. Warner agrees that during the Term of the Research Program it
shall not solicit for employment or employ [*], or otherwise interfere
with the employment by CoCensys of [*] with the intent of ending such
employment."
2. The parties shall in good faith negotiate an amendment to the
Collaboration Agreement pursuant to which that portion of the Research
Program devoted to AMPA antagonists will be terminated. As of the date of
this Agreement, the parties shall no longer be obligated to perform any work
under the Research Program or exchange any further research results related
to AMPA antagonists.
3. Section 2.2 of the Collaboration Agreement shall be amended to
provide that commencing [*], CoCensys shall only be obligated to provide a
minimum of [*]Scientific FTEs, to be funded by Warner at a rate of [*] per
Scientific FTE per calendar year. Section 2.2 shall further be amended to
provide that in the event Warner determines that the number of Scientific
FTEs for [*] must be increased, up to a maximum of [*], Warner shall notify
CoCensys by [*], and CoCensys shall be obligated to provide such FTEs, to be
funded by Warner, at the reimbursement rates set forth above. Under all
circumstances, Warner shall be obligated to fund a minimum of [*] Scientific
FTEs commencing [*].
4. CoCensys hereby agrees that on January 9, 1999, CoCensys shall
issue to Warner such number of shares of common stock of CoCensys which shall
equal $1,000,000.00 divided by the "Average Trading Price". The "Average
Trading Price" shall be the average of the closing prices of CoCensys common
stock (as reported in THE WALL STREET JOURNAL, western edition) for the
thirty (30) "Trading Days" prior to January 9, 1999. The term "Trading Day"
shall mean any day on which shares of CoCensys' common stock have been traded
on a national securities exchange, the NASDAQ stock market or otherwise, as
reported in THE WALL STREET JOURNAL, western edition. Subject to
circumstances beyond CoCensys' reasonable control, CoCensys shall cause such
shares to
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be immediately tradable on any securities exchange on which CoCensys' shares
are then traded (whether by registration or exemption).
5. The parties further agree that they shall execute such other
documents and instruments as may be necessary to effectuate the transactions
contemplated herein.
6. Except as otherwise set forth herein or as subsequently agreed to
by the parties in the good faith negotiations discussed herein, the terms of
the amended and restated Research, Development and Marketing Collaboration
Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
date further set forth above.
COCENSYS, INC. XXXXXX-XXXXXXX COMPANY
By: /s/ F. Xxxxxxx Xxxxxx, Ph.D. By: /s/ Xxxx. Xxxxxx X. Xxxxxxxxx, Ph.D.
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Title: President and CEO Title: Vice President and Chairman,
--------------------------- Xxxxx-Xxxxx Pharmaceutical
Research, Xxxxxx-Xxxxxxx Company
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