Exhibit 10.30
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FIRST AMENDMENT TO RESEARCH AGREEMENT
FIRST AMENDMENT TO RESEARCH AGREEMENT (this "AMENDMENT"), dated as of
December 15, 2005, by and between CombinatoRx, Incorporated, a Delaware
corporation (the "COMPANY"), and CHDI, Inc., a New Jersey corporation (the
"FOUNDATION"). The Company and the Foundation shall hereinafter be referred to
individually as a "PARTY" and collectively as the "PARTIES".
WHEREAS, the Research Institution and the Foundation entered into that
certain Research Agreement, dated as of August 9, 2005 (such agreement as
amended shall hereinafter be referred to as the "AGREEMENT").
WHEREAS, capitalized terms used herein but not otherwise defined shall have
the meanings ascribed thereto in the Agreement.
WHEREAS, the parties hereto desire to amend, modify and supplement the
Agreement as provided herein.
NOW THEREFORE, in consideration of the mutual representations, warranties
and covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS TO THE AGREEMENT.
(a) Section 3 of the Agreement is hereby amended by deleting such Section
in its entirety and replacing it with the text attached hereto as
EXHIBIT 1.
(b) Appendix C of the Agreement is hereby amended by deleting such
appendix in its entirety and replacing it with the "Appendix C"
attached hereto as EXHIBIT 2.
2. SINGLE AGREEMENT; INCONSISTENT TERMS. This Amendment is hereby annexed to
and forms a part of the Agreement. In the event of any inconsistency
between the provisions of this Amendment and those contained in the
Agreement to which this Amendment is annexed, the provisions of this
Amendment shall govern and be binding.
3. RATIFICATION OF THE AGREEMENT. The Agreement is hereby ratified by the
parties hereto, and the terms and provisions of the Agreement as amended,
modified and supplemented by this Amendment shall remain in full force and
effect.
* * * * *
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In witness to the foregoing, the Parties have executed this Amendment as of
the date first written above.
RESEARCH INSTITUTION:
CombinatoRx, Incorporated
By:
--------------------------------
Name:
Title:
FOUNDATION:
CHDI, Inc.
By:
--------------------------------
Name:
Title:
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EXHIBIT 1
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3. OBLIGATION TO MAKE PAYMENTS AND PAYMENT SCHEDULE; QUARTERLY FTE NOTICES;
REVIEW OF QUARTERLY FTE NOTICE; CALCULATION OF ACTUAL QUARTERLY FTE COST;
QUARTERLY PAYMENT ADJUSTMENT.
(a) OBLIGATION TO MAKE PAYMENTS AND PAYMENT SCHEDULE.
(i) OBLIGATION TO MAKE PAYMENTS. The Foundation shall make payments
to the Company for the Research Project as provided in, and
subject to the terms and conditions of, this Agreement. The
Company acknowledges and agrees that the Foundation shall not
be required to make any payment to the Company in respect of
any Phase of the Research Project for which each of the
Scientific Milestones has not been satisfied or achieved.
(ii) PAYMENT SCHEDULE. The amount of each quarterly payment (the
"QUARTERLY PAYMENTS") and milestone payment (the "MILESTONE
PAYMENTS" and, together with the Quarterly Payments, the
"PAYMENTS") are set forth on the payment schedule (the "PAYMENT
SCHEDULE") attached hereto as APPENDIX D.
(b) QUARTERLY FTE NOTICES.
(i) DELIVERY OF THE QUARTERLY FTE NOTICES. The Company shall
deliver a written notice (each, a "QUARTERLY FTE NOTICE") to
the Foundation promptly following the end of each 90-day period
(each, a "QUARTERLY FTE NOTICE PERIOD") during the period
beginning on the Effective Date and continuing through the
Quarterly FTE Notice Period following the last scheduled
Quarterly Payment made by the Foundation under the terms of
this Agreement.
(ii) REQUIRED INFORMATION IN EACH QUARTERLY FTE NOTICE. Each
Quarterly FTE Notice shall be given in respect of the most
recently ended Quarterly FTE Notice Period (the "CURRENT NOTICE
PERIOD") and shall:
(A) set forth the Quarterly Payment number and the year and
quarter of the Research Project (in each case, as set
forth in APPENDIX D) covered by the Current Notice Period;
(B) identify each Phase of the Research Project (each, an
"APPROVED ACTIVE PHASE") for which each of the Scientific
Milestones required to proceed to conduct or perform such
Phase of the Research Project has been satisfied or
achieved;
(C) with respect to each Approved Active Phase, set forth the
number of FTEs budgeted to devote time to such Approved
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Active Phase during the Current Notice Period as set forth
in APPENDIX B (the "CURRENT NOTICE PERIOD BUDGETED FTEs");
(D) with respect to each Approved Active Phase, set forth (1)
the name and title of each individual who actually devoted
time to such Approved Active Phase during the Current
Notice Period and (2) the number of FTEs that actually
devoted time to such Approved Active Phase during the
Current Notice Period (the "CURRENT NOTICE PERIOD ACTUAL
FTEs") (such amount to be calculated by dividing the
number of weeks (or pro rata portion thereof) such
individual actually devoted one-hundred percent of his or
her effort to such Approved Active Phase during the
Current Notice Period by the number 13);
(E) with respect to each Approved Active Phase, set forth the
positive difference, if any, between (1) the aggregate
number of FTEs budgeted to devote time to such Approved
Active Phase during all previous Quarterly FTE Notice
Periods as set forth in APPENDIX B MINUS (2) the aggregate
number of FTEs that actually devoted one-hundred percent
of such aggregate FTE's effort to such Approved Active
Phase as set forth in all prior Quarterly FTE Notices
delivered by the Company and approved by the Foundation in
accordance with this SECTION 3 (such difference
hereinafter referred to as the "CURRENT NOTICE PERIOD
CARRYOVER BUDGETED FTEs BEGINNING BALANCE");
(F) with respect to each Approved Active Phase, set forth the
sum of (1) the Current Notice Period Budgeted FTEs PLUS
(2) the Current Notice Period Carryover Budgeted FTEs
Beginning Balance (such sun hereinafter referred to as the
"CURRENT NOTICE PERIOD TOTAL AVAILABLE BUDGETED FTEs");
(G) with respect to each Approved Active Phase, set forth the
positive difference, if any, between (1) the Current
Notice Period Total Available Budgeted FTEs MINUS (2) the
Current Notice Period Actual FTEs (such difference
hereinafter referred to as the "CURRENT NOTICE PERIOD
CARRYOVER BUDGETED FTEs ENDING BALANCE");
(H) include a certification by the Company that all of the
information provided in such Quarterly FTE Notice is true,
complete and correct.
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(c) REVIEW OF QUARTERLY FTE NOTICE; ACTUAL QUARTERLY FTE COST; QUARTERLY
PAYMENT ADJUSTMENT.
(i) REVIEW OF QUARTERLY FTE NOTICE. Beginning on the date of the
receipt of a Quarterly FTE Notice in respect of a Current
Notice Period, the Foundation shall have a period (the
"QUARTERLY PAYMENT ADJUSTMENT REVIEW PERIOD") of 20 days to (A)
review such Quarterly FTE Notice and (B) request such
additional information from the Company as may be reasonably
required by the Foundation to verify the information set forth
in such Quarterly FTE Notice.
(ii) ACTUAL QUARTERLY FTE COST. Within 10 days of the expiration of
the Quarterly Payment Adjustment Review Period, the Foundation
shall calculate the cost (the "ACTUAL QUARTERLY FTE COST") of
(A) the budgeted management FTE set forth in APPENDIX B for
such Current Notice Period and (B) the Current Notice Period
Actual FTEs for each Approved Active Phase for such Current
Notice Period; provided, however, the amount of Current Notice
Period Actual FTEs used in any such calculation shall not
exceed the Current Notice Period Total Available Budgeted FTEs
for each Approved Active Phase for such Current Notice Period.
For purposes of this Agreement, all calculations shall be made
using a FTE rate of $250,000 per year other than FTEs allocated
to Phase 2 for which a FTE rate of $275,000 shall be used.
(iii) QUARTERLY PAYMENT ADJUSTMENT.
(A) QUARTERLY PAYMENT CREDIT AMOUNT; AGGREGATE QUARTERLY
PAYMENT HOLDBACK AMOUNT. If the Actual Quarterly FTE Cost
for such Current Notice Period is less than the Quarterly
Payment made by the Foundation in respect of such Current
Notice Period, either (1) the Foundation shall credit an
amount (each, a "CURRENT NOTICE PERIOD QUARTERLY PAYMENT
CREDIT AMOUNT") equal to the difference between the
Quarterly Payment made by the Foundation in respect of
such Current Notice Period MINUS the Actual Quarterly FTE
Cost for such Current Notice Period against any future
payments required to be made by the Foundation to the
Company under this Agreement or (2) upon the written
request of the Foundation, the Company shall pay an amount
(each, a "CURRENT NOTICE PERIOD QUARTERLY PAYMENT REFUND
AMOUNT") equal to the difference between the Quarterly
Payment made by the Foundation in respect of such Current
Notice Period MINUS the Actual Quarterly FTE Cost for such
Current Notice Period to the Foundation within 30 days of
the receipt of any such written request.
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For purposes of this Agreement, the aggregate of all
Current Notice Period Quarterly Payment Credit Amounts and
Current Notice Period Quarterly Payment Refund Amounts
LESS the aggregate of all Quarterly Payment Increase
Amounts (as defined in SECTION 3(c)(iii)(B) of this
Agreement) paid by the Foundation to the Company pursuant
to SECTION 3(c)(iii)(B) of this Agreement shall be
referred to as the "AGGREGATE QUARTERLY PAYMENT HOLDBACK
AMOUNT".
(B) QUARTERLY PAYMENT INCREASE AMOUNT. If (1) the Actual
Quarterly FTE Cost for such Current Notice Period is
greater than the Quarterly Payment made by the Foundation
in respect of such Current Notice Period and (2) the
Aggregate Quarterly Payment Holdback Amount is greater
than zero, the Foundation shall increase the amount of the
next scheduled Quarterly Payment by an amount (each, a
"QUARTERLY PAYMENT INCREASE AMOUNT") equal to the lesser
of (a) the difference between the Actual Quarterly FTE
Cost for such Current Notice Period MINUS the Quarterly
Payment made by the Foundation in respect of such Current
Notice Period and (b) the then outstanding Aggregate
Quarterly Payment Holdback Amount.
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EXHIBIT 2
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APPENDIX C TO RESEARCH AGREEMENT
(SCIENTIFIC MILESTONES)
RESEARCH PROJECT - SCIENTIFIC MILESTONES
RESEARCH PROJECT PHASE CONDITION(S) TO BEGIN CONDUCT OF PHASE
------------------------------------------------- ---------------------------------------------------------------
Phase 1 through Phase 5 Execution of this Agreement by the Parties.
The Research Committee has made each decision and granted each
approval expressly set forth in this Agreement that is
specifically required or otherwise necessary to begin the
conduct of any specific Phase of the Research Project.
Phase 1A Execution of this Agreement by the Parties.
Phase 1B - Part 1 Execution of this Agreement by the Parties.
Phase 1B - Part 2 The Research Committee has approved at least one cell line for
use as the parental cell line for the generation of the TRex
Flp-In neuroblastoma cell line by Invitrogen within six months
of the Effective Date.
The Foundation and Invitrogen have executed the Invitrogen
Agreement within six months of the Effective Date.
Invitrogen has delivered the TRex Flp-In neuroblastoma cell
Phase 1B - Part 3 line to the Company within 12 months of the execution of the
Invitrogen Xxxxxxxxx.
Xxxxx 0X Xxxxxxxxx of this Agreement by the Parties.
Phase 2 and 3 - Use of Assay 1 for Screening Complete optimization of Assay 1 within four months following
the date the Company has taken delivery of the cell line
approved by the Research Committee for use in the optimization
of Assay 1.
Assay 1 meets each of the specifications set forth in
APPENDIX A and is approved by the Research Committee for use in
Phase 2 and 3.
Phase 2 and 3 - Use of Assay 2 for Screening Complete development and optimization of Assay 2 within five
months following the delivery of the TRex Flp-In
neuroblastoma cell line to the Company.
Assay 2 meets each of the specifications set forth in
APPENDIX A and is approved by the Research Committee for use in
Phase 2 and 3.
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Phase 2 and 3 - Use of Assay 3 for Screening Complete development and optimization of Assay 3 within nine
months following the date cell lines and htt specific
antibodies approved by the Research Committee for use in the
development and optimization of Assay 3 are acquired by, or
on behalf of, the Company.
Assay 3 meets each of the specifications set forth in
APPENDIX A and is approved by the Research Committee for use in
Phase 2 and 3.
Phase 2A The Company has (a) selected at least 1,300 Company
Library Compounds within one month of the approval by the
Research Committee of any of the Assays for use in Phase 2
and 3 and (b) acquired each Foundation Selected Compound
within one month of the selection of such compounds by the
Foundation.
Phase 2B The screening required by Phase 2A has been completed within 26
months of the Effective Date.
The combination screening strategy for Phase 2B is approved by the
Research Committee.
Phase 3 The Research Committee approves at least one Phase 3
Approved Compound Combination.
Phase 4 The Research Committee approves at least one Phase 4
Approved Compound Combination.
Phase 5 The Foundation approves at least one Phase 5 Approved
Compound Combination.
