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EXHIBIT 10.6
EXECUTION COPY
AMENDMENT TO
EXECUTION COPY
RESEARCH AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
BIOCHEM PHARMA INC. AND CLINICHEM DEVELOPMENT INC.,
THIS AMENDMENT (the "Amendment"), made and entered into as of the 4th day
of May, 1998 (the "Effective Date"), is by and between BIOCHEM PHARMA INC., a
Canadian corporation ("BioChem") and CLINICHEM DEVELOPMENT INC., a Canadian
corporation ("CliniChem").
WHEREAS, BioChem and CliniChem are parties to that certain Research and
Development Agreement dated March 31, 1998 (the "Original Agreement");
WHEREAS, BioChem and CliniChem desire to amend the Original Agreement as
set forth herein; and
WHEREAS, capitalized terms used but not otherwise defined herein shall have
the meaning ascribed to them in the Original Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Article 1.3 of the Original Agreement shall be amended to read:
"Available Funds" shall mean, as of any date of determination, all of the
funds contributed to CliniChem by BioChem or a BioChem Affiliate, plus any
investment income earned thereon, less (a) the aggregate amount of all
Research and Development Costs paid or incurred by CliniChem as of such
date, (b) CliniChem's aggregate reasonable ongoing administrative expenses
and income taxes paid (less income taxes refunded) or incurred as of such
date, (c) the aggregate amount of all Technology Fee payments paid or
incurred by CliniChem as of such date, (d) the aggregate amount of all
payments paid or incurred by CliniChem under the Services Agreement and (e)
reasonable amounts actually paid by CliniChem for consultants to advise the
Board of Directors of CliniChem with respect to the CliniChem Products and
the CliniChem Programs. Available Funds shall not include payments made by
BioChem to CliniChem pursuant to the Product Option Agreement.
2. Article 2.3(c) of the Original Agreement shall be amended to read:
The parties recognize that bona fide disputes may arise from time to time
in connection with devising mutually-acceptable Work Plans for the
CliniChem Programs. If CliniChem's Board of Directors accepts or rejects a
Work Plan in part, BioChem may either (i) perform the activities under the
Work Plan as approved by CliniChem or (ii) propose a modified Work Plan to
CliniChem for approval. Notwithstanding the foregoing, in the event
CliniChem's Board of Directors rejects in whole or in substantial part
three consecutive Work Plans proposed by BioChem with respect to a
particular CliniChem Program, BioChem and CliniChem shall resolve the
dispute in accordance with the provisions of Section 12.3 of this
Agreement. Prior to the resolution of any such dispute, BioChem shall have
the right to perform the work specified under its most recently approved
Work Plan and CliniChem shall be obligated to pay the Research and
Development Costs incurred in connection therewith.
3. Article 3.1 of the Original Agreement shall be amended to read:
Payment of Research and Development Costs. In consideration of the work to
be carried out by BioChem hereunder, CliniChem shall make payments to
BioChem or its Affiliates for all Research and Development Costs incurred
by BioChem or its Affiliates in accordance with accepted Work Plans up to
the maximum amount of Available Funds. CliniChem shall make payments to
BioChem for Research and Development Costs with respect to the initial
CliniChem Programs which are incurred from the date of the declaration of
the Distribution.
4. Article 9.1 of the Original Agreement shall be amended to read:
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Use of Available Funds. Unless BioChem agrees otherwise, CliniChem agrees
to expend the Available Funds only for activities undertaken pursuant to
this Agreement and for payments due to BioChem or a BioChem Affiliate under
this Agreement, the Technology License Agreement and the Services
Agreement. Pending application of all Available Funds as set forth above,
Available Funds shall be invested in interest-bearing, investment-grade
securities.
5. As amended hereby, the Original Agreement shall remain in full force and
effect.
IN WITNESS HEREOF, the parties have executed this Amendment as of the
Effective Date by their duly authorized representatives.
BIOCHEM PHARMA INC. CLINICHEM DEVELOPMENT INC.
By: By:
Title: Title:
By: By:
Title: Title:
