EXHIBIT 10.3
LICENSE AGREEMENT
AMENDMENT NO. 1
This License Agreement Amendment No. 1 (the "Amendment") is made and
entered into as of this _____ day of April 2001, by and between Novartis
Consumer Health, Inc., 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000
("Novartis"), and CIMA LABS INC., 00000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX
00000 ("CIMA").
WITNESSETH:
WHEREAS CIMA and Novartis are parties to a License Agreement, dated July
1, 1998 (the "License Agreement"), by which Novartis licensed from CIMA certain
rights with respect to CIMA Patents and Know-How and the Products, as defined
and set forth more fully therein; and
WHEREAS the parties wish to amend the License Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
obligations set forth herein, CIMA and Novartis hereby agree as follows:
1. Section 4.2 of the License Agreement is hereby modified by deleting
it in its entirety and replacing it with the following:
4.2 As further consideration for the license granted to NCH under
this License Agreement as stipulated in Article 2 above, NCH shall
pay to CIMA a running non-refundable royalty of (i) [***CONFIDENTIAL
TREATMENT REQUESTED, PORTION OMITTED FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***] of Net Sales
[***CONFIDENTIAL TREATMENT REQUESTED, PORTION OMITTED FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***] of all
Products in the Field and in the Territory, (ii) [***CONFIDENTIAL
TREATMENT REQUESTED, PORTION OMITTED FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***] of Net Sales
[***CONFIDENTIAL TREATMENT REQUESTED, PORTION OMITTED FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***] of all
Products in the Field and in the Territory, and (iii)
[***CONFIDENTIAL TREATMENT REQUESTED, PORTION OMITTED FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***] of Net
EXHIBIT 10.3
Sales [***CONFIDENTIAL TREATMENT REQUESTED, PORTION OMITTED FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.***] of all
Products in the Field and in the Territory, in each case in
accordance with the provisions of Article 5. The running royalty
shall be fully creditable against minimum annual royalties, as set
forth below in Section 4.4.
2. Article 7 of the License Agreement is hereby modified by deleting
it in its entirety and replacing it with the following:
7. CONFIDENTIALITY
7.1 During the period that this Agreement is in effect and
thereafter, CIMA and NCH shall not disclose to anyone in any manner
whatsoever or use for any purpose other than its performance of this
Agreement (except as authorized in writing by the disclosing party)
any information it receives from the other party (the
"Information"), including, without limitation, intellectual
property, inventions, works of authorship, trade secrets or know-how
or other information relating in any way to the Products, processes,
and services of the other party.
7.2 Each party shall limit disclosure of Information
received hereunder to only those of its Agents (as defined below)
who are directly concerned with the performance of any activities
with respect to which the Information was disclosed and who have a
need to know the particular Information in order to perform such
activities.
7.2.1 Each party agrees to advise those of its employees
who receive any other party's Information that such Information (a)
is proprietary and confidential to such party and (b) shall not be
disclosed to anyone except as authorized by this Agreement or
otherwise authorized by such party in writing. Each party further
agrees to take at least such precautions as it normally takes with
its own confidential and proprietary information to prevent
unauthorized disclosure of the other party's Information.
7.2.2 To the extent either party discloses Information
of the other party to an Agent, or permits an Agent to have access
to such Information, such party shall indemnify the other party for
any claims, damages, losses, liabilities, costs or expenses,
including reasonable attorneys' fees, incurred by
EXHIBIT 10.3
the other party as a result of the indemnifying party's Agent
further disclosing or misusing such Information.
7.2.3 For purposes of this Agreement, (i) the term
"Agent" shall mean a party's employees, the employees of the party's
Affiliate (as defined below), and the party's consultants,
subcontractors or manufacturing contractors, and their employees;
and (ii) a corporation or other business entity is an "Affiliate" of
a party hereto it such corporation or entity is controlled by,
controlling or under common control with such party.
7.3 Each party acknowledges that any unauthorized disclosure
of any portion of the other party's Information shall cause
irreparable injury to the other party and that no adequate or
complete remedy shall be available at law to such other party to
compensate for such injury. Accordingly, each party hereby also
acknowledges that the other party shall be entitled to injunctive
relief in the event of such unauthorized disclosure by a party or
any of its employees in addition to whatever remedies it might have
at law.
7.4 Upon termination of this Agreement, each party shall
return to the other all copies of the other's Information, and shall
make no further use of such Information, except for one copy which
may be retained in the receiving party's confidential files.
7.5 The obligations of this Section 8 shall not apply to
Information
7.5.1 that is or has been in the possession of the
recipient prior to receipt of the same from the disclosing party as
evidenced by written records;
7.5.2 which the recipient lawfully obtains from any
third party not under an obligation to the disclosing party to hold
the same in confidence;
7.5.3 that is published or becomes part of the public
domain without breach of any undertakings discussed hereinabove;
7.5.4 that is independently developed by personnel of
the receiving party; or
EXHIBIT 10.3
7.5.5 that is required to be disclosed pursuant to
judicial process, court order or administrative request, or that is
otherwise required for any regulatory filing, provided that the
receiving party shall notify the other party sufficiently prior to
disclosing such Information as to permit such other party to seek a
protective order.
7.6 CIMA and NCH agree not to issue any press release or
other public statement disclosing the existence of or relating to
this Agreement without prior written consent of the other party;
provided, however, that neither CIMA nor NCH shall be prevented from
complying with any duty of disclosure it may have pursuant to law,
including, but not limited to, the Securities Act of 1933, as
amended, or the Securities and Exchange Act of 1934, as amended,
subject to notifying the other party in writing and, to the extent
practicable, giving such other party reasonable time to comment on
the same prior to disclosure. Notwithstanding the foregoing, NCH and
CIMA each shall have the right to disclose information regarding
this Agreement to potential investors and its financial advisors
(including allowing such investors and financial advisors to review
this Agreement itself); provided, that, the disclosing party has
obtained a commercially reasonable confidentiality agreement from
each such investor and financial advisor.
3. All provisions of the License Agreement not explicitly modified
herein shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
as of the Effective Date by their duly authorized officers.
NOVARTIS CONSUMER HEALTH, INC. CIMA LABS INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxx X. Xxxxxxx
----------------- ----------------------
Name: Xxx Xxxxxx Name: Xxxx X. Xxxxxxx
Title: SVP Supply Chain Title: President & CEO
Date: 8/24/01 Date: 2 September 2001
