CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.<?xml:namespace prefix = o ns = "urn:schemas-microsoft- com:office:office" />
CONFIDENTIAL
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.<?xml:namespace
prefix = o ns = "urn:schemas-microsoft-com:office:office"
/>
SECOND
AMENDMENT
This
Second Amendment (the "Second Amendment") to the Collaboration
Agreement dated as of November 27, 2006,
and as amended as of November 25, 2009 (the "Agreement"), is effective as
of December 20, 2009 ("Second Amendment Effective Date"), between Xxx
Xxxxx and Company, a corporation organized and existing under the laws of
the State of Indiana ("LILLY"), and Applied NeuroSolutions, Inc., a
corporation organized and existing under the laws of the State of Delaware
("APNS").
Whereas,
the
parties desire to amend the Agreement to clarify certain provisions thereof (all
references to a "Section" shall mean the applicable Section of the Agreement, as
amended by this
Second Amendment);
Now, therefore, for good and lawful
consideration, the sufficiency of which is acknowledged
and agreed, the parties, intending to be legally bound, hereby agree as
follows:
Article
1. In
consideration of this Second Amendment, LILLY [***]
on
or before [***]. This
[***]
is in
addition to any other [***].
Article
2. The
parties hereby agree to amend Section 1, first paragraph, by inserting the
following
sentences at the end thereof:
“For
clarity, the term “Compounds” shall include, (1) the “[***]”
set forth in the Research Plan, and (2) direct derivatives thereof (all such
Compounds described in clauses (1) and (2) are referred
to as the “[***]
Compounds”);
provided,
however, that the term “Compounds” shall not
include [***]. The term
“Other Targets”
shall also include [***].”
Article
3. The
parties hereby agree to amend Section 9 (a) by inserting the following at the
end
thereof:
“for
research purposes (“Research Tools”).
APNS also grants to LILLY an exclusive, non-
sublicensable,
royalty-free license during the Agreement Term under APNS IP for the purpose
of developing
[***]
Compounds
in the Field.”
Article
4.
The
parties hereby agree to amend Section 9 (c) in its entirety as
follows:
“Commercial
Licenses to LILLY. Subject to the terms and conditions of this Agreement, APNS
hereby
grants to LILLY (i) an exclusive worldwide, [***] license
during the Agreement Term, including the right to sublicense subject to Section
9(e), under the APNS IP and [***] to make,
use, import, sell and offer to sell Products, and (ii) a non-exclusive,
worldwide, [***] license
[***] under the
APNS IP to make, use, import, sell, and
offer to sell biomarkers and diagnostics relating to Products (but
not
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THE CONFIDENTIAL PORTION OF THIS
AGREEMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO A REQUEST FOR
CONFIDENTIALITY. |
including
[***]),
The license granted under Section 9(c)(ii) shall [***].”
Article
5. The
parties hereby agree to amend Section 9 (d) in its entirety as
follows:
“Commercial
Licenses to APNS. Subject to the
terms and conditions of this Agreement and rights previously granted to third
parties by XXXXX, XXXXX hereby grants to APNS (i) a [***], with the
right to sublicense, under the LILLY IP to make, have made, use, import, sell,
offer to sell, and otherwise distribute, biomarkers and diagnostics and (ii)
[***],
with the right
to sublicense, under the LILLY IP to make, have made, use, import, sell, offer
to sell, and otherwise distribute, [***]. The
licenses granted under this Section 9(d) shall [***].”
Article
6. The
parties hereby agree to amend Section 9 by inserting the following as Section
9(g)
“For
clarity, at the point that LILLY ceases to develop Compounds, or upon an Event
of Default by LILLY,
these research licenses granted to LILLY under Section 9(a) will terminate, and
LILLY will return all Materials to APNS.”
Article
7. The
parties hereby agree to amend Section 11 (a) by adding under the milestone table
the following:
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[***] |
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[***] |
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[***] |
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[***] |
[***] |
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Article
8.
The
parties hereby agree to amend Section 11 (b) by adding under the royalty
table the
following:
Annual
Sales*
[***]
[***] [***]
[***] [***]
[***]
[***]
[***]
[***]
2
Article
9.
Other Amendments. For purposes of the Agreement, the term “1994 Agreement” shall
mean the 1994 Agreement, as amended by the Fourth Amendment Agreement dated
December 1, 2008, and by the Fifth Amendment Agreement dated November 1, 2009.
For purposes of the Agreement, the term "Davies Agreement” shall
mean the Consulting Agreement with Dr. Xxxxx Xxxxxx dated December 1,
2008. Neither of these Amendments, nor the Davies Agreement, materially affect
LILLY'S rights hereunder.
Article
10. Effect on
Agreement. Except as amended by this Second Amendment, the Agreement shall
remain in full force and effect.
After the Second Amendment Effective Date, every reference in the Agreement to the
“Agreement” shall mean the Agreement as amended by this Second
Amendment.
Article
11. Defined
Terms. All terms used, but not defined, herein shall have the respective
meanings set forth in the Agreement.
Article
12.
Counterparts. This Second Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which will
constitute one and the same instrument.
In
witness whereof, the
parties have executed this Second Amendment as of the Second
Amendment Effective Date.
Xxx Xxxxx and
Company
By:
/s/Xxxxxx X. Pavl
Name:
Title:
Applied NeuroSolutions, Inc.
By:
/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President and
CEO
