XenoPort Letterhead] May 4, 2007
Exhibit 10.29.1
[XenoPort Letterhead]
May 4, 2007
Xx. Xxxxx Xxxxxxxx
Company Secretary
Glaxo Group Limited
Glaxo Wellcome House
Berkeley Avenue
Greenford, Middlesex, UB6 0NN
UNITED KINGDOM
Company Secretary
Glaxo Group Limited
Glaxo Wellcome House
Berkeley Avenue
Greenford, Middlesex, UB6 0NN
UNITED KINGDOM
| Re: | First Amendment to Development and Commercialization Agreement between XenoPort, Inc. (“XenoPort”) and Glaxo Group Limited (“GSK”) dated February 7, 2007 (“Agreement”) |
Dear Xx. Xxxxxxxx:
This letter (the “First Amendment”) is to confirm the agreement between XenoPort and GSK with
respect to an amendment to the Agreement as set out in Paragraphs 1 and 2 below. All capitalized
terms not otherwise defined in this First Amendment shall have the respective meanings given to
such terms in the Agreement.
1. XenoPort and GSK acknowledge and agree that by email dated February 26, 2007 from Xxxxxxx
Xxxxx of the Pre-merger Office of the Federal Trade Commission to Xxxxx Xxxxx of Xxxxxx Xxxxxxxx
Xxxxx & Xxxxxxxx LLP, the Federal Trade Commission confirmed that the license granted to GSK by
XenoPort under the Agreement is not exclusive under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended (“HSR Act”), and thus, the requirements of the HSR Act are not
applicable to the activities of the Parties contemplated in the Agreement. Accordingly:
(a) no pre-merger notification and report forms will be filed by either Party with the Federal
Trade Commission or the Department of Justice;
(b) the obligations of XenoPort and GSK under Sections 19.2 and 19.3 of the Agreement shall be
deemed to have been fulfilled;
(c) the HSR Conditions specified in Section 19.1 of the Agreement shall been deemed to have
been satisfied; and
(d) the provisions of Articles 2 through 7 shall take effect and the collaboration shall
commence as of March 2, 2007.
2. XenoPort and GSK agree that the Agreement shall be amended as follows:
(a) The words “the HSR Clearance Date” in Section 3.1(a) of the Agreement shall be deleted and
replaced with the following words: “March 2, 2007 (the “Closing Date”)”; and
(b) All references to “the HSR Clearance Date” in Sections 3.2(a), 3.7, 4.1(a), 4.6(a),
4.8(a), 4.12(a), 4.12(b), 6.1, 10.1, 10.2 and 13.2 of the Agreement shall be replaced with the
words “the Closing Date” in each such Section.
Except as specifically provided in this First Amendment, no provision of the Agreement shall
be modified or amended hereby and all provisions of the Agreement shall remain in full force and
effect. The Agreement, as specifically modified and amended by this First Amendment, is hereby
confirmed and approved. This First Amendment and all questions regarding its validity or
interpretation shall be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without reference to conflict of law principles.
Please confirm GSK’s acceptance of, and agreement with, the this First Amendment by signing,
or having an authorized representative of GSK sign, two (2) copies of this First Amendment and
return one (1) original copy and one (1) photocopy of the First Amendment to:
| Originally executed copy to: | And a copy to: | |||||
| XenoPort, Inc. | Xxxxxx, Sonsini, Xxxxxxxx & Xxxxxx | |||||
| 0000 Xxxxxxx Xxxxxxxxxx | 000 Xxxx Xxxx Xxxx | |||||
| Santa Clara, CA 95051 | Palo Alto, CA 94304 | |||||
| Facsimile: (000) 000-0000 | Facsimile: (000) 000-0000 | |||||
| Attention: Secretary | Attention: Xxxxxxx X. Xxxxx | |||||
| Yours sincerely, | ||||||
| /s/ Xxxxxxx X. Xxxxxxx
|
||||||
| President |
ACKNOWLEDGED AND AGREED BY GLAXO GROUP LIMITED:
| /s/ Xxxxxxxx Xxxxx | ||||
Name: |
Xxxxxxxx Xxxxx | |||
Title: |
Assistant Secretary | |||
Date: |
May 8, 2007 | |||
| cc: | Xxxxxx Xxxxxxxxx | |||
| Senior Vice President, Worldwide Business Development, GlaxoSmithKline | ||||
| cc: | Xxxxx Xxxx | |||
| Vice President and Associate General Counsel, Business Development Transactions, | ||||
| GlaxoSmithKline | ||||
- 2 -
