***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. xx.xx. 200.80(b)(4),
200.83 and 240.24b-2
AMENDMENT FIRST
This first amendment (the "Amendment"), dated December 31, 1998, ("Effective
Date of this Amendment") entered by and between SUGEN, Inc., a Delaware
corporation, located at 000 Xxxx Xxxxx Xxxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx
00000-0000 ("SUGEN") and ASTA Medica Aktiengesellschaft, a German corporation,
with headquarters at Xxxxxxxxxxxxxxxxxxx 00, X-00000 Xxxxxxxxx xx Xxxx, Xxxxxxx
("ASTA Medica") amends and with respect to the terms below supersedes the
respective terms in the Collaboration Agreement by and between the same Parties,
dated December 5, 1995 (the "Agreement"). All other terms and conditions of the
Agreement shall abide this Amendment. SUGEN and ASTA Medica are each considered
a "Party" and together considered the "Parties" hereto.
Whereas, ASTA Medica seeks to extend the period of time for screening and
selection of Active Compounds under the Raf and Her2 Projects, as referenced in
Section 2.5 of the Agreement; and
Whereas, under Article 5 of the Agreement, in which SUGEN contracts for services
to be performed by ASTA Medica and charged against a monetary credit held by
ASTA Medica, SUGEN seeks to fully utilize the remaining credit for the provision
of the contract services;
Now Therefore, in consideration of the foregoing and the covenants and mutual
promises, the Parties hereby agree to amending the Agreement as follows:
1. Extension of the Raf Project. ASTA Medica [...***...] extend screening
activities under the Raf Project beyond the current final date of [...***...].
During such [...***...]. In the event that [...***...] in consideration of such
extension. Such compensation shall be payable as follows:
A. [...***...] payable by ASTA Medica in cash [...***...]; and
B. [...***...] payable by ASTA Medica in exchange for SUGEN Common
Stock, to be issued and sold to ASTA Medica on March 31, 1999 pursuant to that
certain Common Stock Purchase Agreement, by and between ASTA Medica and SUGEN,
dated contemporaneously herewith, at a price per share equal to twice the fair
market value thereof. Such fair market value shall be determined to be equal to
the average last reported sales price of a share of SUGEN Common Stock as
reported for the NASDAQ (National Market) for the twenty (20) business days
preceding the day on which the payment is made.
2. Her2 Project.
2.1 Extension of the Her2 Project. In consideration of SUGEN's
agreement to extend the Screening Period (as defined in Section 2.4(c) of the
Agreement) and screening activities under the Her2 Project until [...***...],
ASTA Medica shall pay SUGEN [...***...] payable as follows:
A. [...***...] (US$375,000) payable by ASTA Medica in exchange for
SUGEN Common Stock, to be issued and sold to ASTA Medica on December
31, 1998 pursuant to that certain Common Stock Purchase Agreement, by
and between ASTA Medica and SUGEN, dated contemporaneously herewith,
at a price per share equal to twice the fair market value thereof.
Such fair market value shall be determined to be equal to the average
last reported sales price of a share of SUGEN Common Stock as reported
for the NASDAQ (National Market) for the twenty (20) business days
preceding the day on which the payment becomes due;
B. [...***...] payable by ASTA Medica in cash [...***...]; and
C. [...***...] payable by ASTA Medica in exchange for SUGEN Common
Stock, to be issued and sold to ASTA Medica on March 31, 1999 pursuant
to that certain Common Stock Purchase Agreement, by and between ASTA
Medica and SUGEN, dated contemporaneously herewith, at a price per
share equal to twice the fair market value thereof. Such fair market
value shall be determined to be equal to the average last reported
sales price of a share of SUGEN Common Stock as reported for the
NASDAQ (National Market) for the twenty (20) business days preceding
the day on which the payment becomes due.
ASTA Medica shall also be responsible for [...***...] in accordance with Section
6.1 of the Agreement [...***...] in accordance with terms and conditions of the
Agreement and this Amendment.
2.2 Her2 Project Research Payment. ASTA Medica agrees to pay SUGEN a
research payment of [...***...] for research conducted on the Her2 Project by
SUGEN in [...***...]. Such payment shall be payable by ASTA Medica in cash no
later than [...***...].
3. Termination of Projects. ASTA Medica and SUGEN agree on new criteria for
continuation of Projects to replace the corresponding provision of Section
4.2(c) of the Agreement. The Parties hereby agree that in the event [...***...],
then such Project shall terminate. Upon such termination of a Project, the
Parties shall enter into a License Agreement as provided for in the relevant
remaining part of Section 4(c) of the Agreement.
4. Failure to Comply. Failure to comply with the payment requirements under
Sections 1 and/or 2 of this Amendment shall result in ASTA Medica's forfeiture
of its rights in accordance with Section 10.2 of the Agreement with regard to
the respective Project(s) to which the default in payment and failure to cure
applies.
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5. Further Screening Activities. SUGEN agrees to extend further screening
activities on Active Compounds as provided for in Section 2.7 of the Agreement
for an additional [...***...], with the new ending date of [...***...].
6. Non-competition. ASTA Medica and SUGEN agree that [...***...] under Section
4.3 of the Agreement [...***...] as provided for in Section 1 of this Amendment.
7. Contract Services Credit Extension. ASTA Medica agrees to extend the time
under which SUGEN is obligated to use a partial existing credit (under Section
5.2 of the Agreement) in the remaining amount equal to the difference between
[...***...] of the original credit and the total amount of all statements of
contract services performed by ASTA Medica under Section 5.1 of the Agreement
through the Effective Date of this Amendment. SUGEN's remaining credit shall
[...***...]. Such services must be used by SUGEN by [...***...].
8. Independence of Projects. Any decisions with respect to Raf and Her2 Projects
shall be made independently of each other, and termination of any one of the
Projects shall not result in the termination of the other or in the termination
of the Agreement.
This Amendment has been executed by the Parties as of the Effective Date of this
Amendment.
SUGEN, Inc. ASTA Medica Aktiengesellschaft
By: /s/ Xxxxxxx Xxxxx-Freke By: /s/ Xxxxxxx Xxxxxxx
--------------------------------- ----------------------------------
Xxxxxxx Xxxxx-Freke Xxxxxxx Xxxxxxx
------------------------------------ --------------------------------------
Name Name
Chairman and Chief Executive Officer Member of the Executive Board
Title Title
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