EXHIBIT 10.10
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS *. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
AMENDMENT NO. 2 TO LICENSE AGREEMENT
THIS AMENDMENT TO LICENSE AGREEMENT ( "AMENDMENT") made as of the 8th
day of July, 2004, by and between ANORMED INC., a federal corporation
incorporated pursuant to the laws of Canada and having an office at 200 - 00000
00xx Xxxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0 ("ANORMED") and SYNERGY
PHARMACEUTICALS INC., a Delaware corporation having an office at 0 Xxxx Xxxx
Xxxxx, Xxxxx X, Xxxxxxxx Xxxxxxxx, XX 00000 ("SYNERGY") and Callisto
Pharmaceuticals, Inc., a Delaware corporation having an office at 0000-000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Callisto").
W I T N E S S E T H T H I S:
WHEREAS:
A. Pursuant to an agreement entitled "License Agreement" (the "LICENSE
AGREEMENT") dated as of August 28th, 2002 and made between AnorMED and
Synergy, AnorMED granted to Synergy a license to develop, manufacture,
have manufactured, use and commercialize products incorporating
Atiprimod (a/k/a Azaspiranes) upon the terms and conditions therein set
forth;
B. Pursuant to an agreement entitled "Amendment No. 1 to License
Agreement" (the "FIRST AMENDING AGREEMENT") dated as of May 23rd, 2003
and made between AnorMED and Synergy, the parties agreed to modify the
terms of the License Agreement;
C. Synergy is a wholly-owned subsidiary of Callisto; and
D. The parties wish to further modify the terms of the License Agreement,
as hereinafter provided.
NOW, THEREFORE, in consideration of good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. All capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in the License
Agreement. All references in the License Agreement to "this Agreement" shall be
deemed to be the License Agreement as amended by the First Amending Agreement
and this Agreement unless the context requires otherwise.
2. AMENDMENT. Section 3 of the License Agreement is hereby amended
by adding the following sentence at the end of the last paragraph::
"Notwithstanding the foregoing, in the event Synergy files the
First Health Registration Application based on a Phase II study
and prior to the completion of a Phase III study, the payment to
AnorMED by Synergy of US$* (the "Payment") shall be deferred until
the earlier of (i) the First Health Registration Approval, or (ii)
the First Health Registration Application following the completion
of a Phase III study, at which time the Payment shall be made
within ninety (90) days following the First Health Registration
Approval or the First Health Registration Application following
the completion of a Phase III study, as the case may be."
3. GUARANTEE. Callisto irrevocably guarantees to AnorMED the due
and punctual performance by Synergy of each and every obligation under the
License Agreement. The obligations of Callisto hereunder shall be absolute and
unconditional, shall not be subject to any counter-claim, set-off, deduction, or
abatement and shall remain in full force and effect without regard to, and shall
not be released, discharged or in any way affected by any circumstance or
condition other than the performance in full of the guaranteed obligation.
4. CONTINUED FORCE AND EFFECT. The parties acknowledge and agree
that except as amended by the First Amending Agreement and this Amendment, the
License Agreement is and remains unchanged and in full force and effect.
5. TIME OF THE ESSENCE. Time is expressly declared and stipulated
to be of the essence of this Amendment in respect of all payments to be made
hereunder and all covenants and agreements to be performed and fulfilled. Any
extension of time hereunder shall not be deemed to be or to operate in law as a
waiver that time is to be of the essence of this Amendment.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, provided each of the parties hereto executes at least one
counterpart; each such counterpart hereof shall be deemed to be an original
instrument, and all such counterparts together shall constitute one agreement.
7. GOVERNING LAW. This Amendment shall be construed and enforced
in accordance with the laws of the State of Washington, U.S.A. (regardless of
its or any other state's choice of law provisions)..
8. FACSIMILE. This Amendment may be executed by facsimile, and
such signatures shall have the same force and effect as originals.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
ANORMED INC.
By: /s/ Xxxx X. Xxxxxxx, PhD
--------------------------
Name: Xxxx X. Xxxxxxx, PhD
Title: VP, Research &
Development
Chief Scientific Officer
SYNERGY PHARMACEUTICALS INC.
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: Chairman
CALLISTO PHARMACEUTICALS, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Chairman
