SECOND AMENDMENT TO STANDSTILL AND OPTION AGREEMENT
Exhibit
10.27(ii)
SECOND
AMENDMENT TO STANDSTILL AND OPTION AGREEMENT
This
SECOND AMENDMENT TO STANDSTILL AND OPTION AGREEMENT (this “Second Amendment”) effective this 29th
day of December, 2009 (the “Effective Date”), is
made and entered into by and among Xxxxxx Healthcare Corporation, a Delaware
Corporation with a place of business at Xxx Xxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000
(“BHC”), Xxxxxx Healthcare S.A.,
a corporation organized under the laws of Switzerland with a place of business
at Xxxxxxxxxxxxxxxx 000, 0000 Xxxxxxxxx (Xxxxxxx) Xxxxxxxxxxx (“BHSA”), Xxxxxx
Innovations GmbH, a corporation organized under the laws of Austria with a place
of business at Xxxxxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxx (“Innovations” and,
together with BHC and BHSA, “Baxter”) and Medgenics, Inc., a Delaware
corporation with a place of business at Xxxxxxxx Xxxxxxxx Xxxx, X.X. Xxx 00,
Xxxxxx 00000 Xxxxxx (“Medgenics”). Baxter and Medgenics are
each sometimes referred to herein as a “Party” and, collectively, as the
“Parties”.
BACKGROUND
WHEREAS,
Baxter and Medgenics entered into that certain Standstill and Option Agreement
dated October 22, 2009 as amended by that certain First Amendment to Standstill
and Option Agreement dated October 22, 2009 (as amended, the “Agreement”) pursuant
to which inter xxxx
Xxxxxx agreed to fund certain research and development activities to be
conducted by Medgenics relating to the application of Medgenics’ Biopump
Technology to produce human Factor VIII (hFVIII) protein; and
WHEREAS,
the parties wish to restructure the payments under the Agreement to provide for
earlier payment, by Baxter, of the Initial Milestone Payment and the
modification of the Standstill Period (as such term is defined in the
Agreement).
NOW,
THEREFORE, in consideration of the foregoing and such other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:
AGREEMENT
1. Incorporation of the
Agreement. All capitalized terms
which are not defined herein shall have the same meanings as set forth in the
Agreement, and the Agreement, to the extent not inconsistent with this Second
Amendment, is incorporated herein by this reference as though the same was set
forth in its entirety. To the extent
any terms and provisions of the Agreement are inconsistent with the amendments
set forth in Paragraph 2 below, such terms and provisions shall be deemed
superseded hereby. Except as specifically set forth herein, the Agreement shall
remain in full force and effect and its provisions shall be binding on the
Parties hereto.
2. Amendment of the
Agreement. The Agreement is hereby amended as follows:
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a.
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Section 1 is hereby amended by
deleting the section in its entirety and replacing it with the following
language:
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“1. Financial Considerations. Baxter shall pay
to Medgenics an amount equal to Two Million Six Hundred Thousand Dollars
($2,600,000). Of this amount, One Million Five Hundred Thousand Dollars
($1,500,000) shall be allocated to the obligations of Medgenics pursuant to
Section 2 (the
“Standstill
Payment”) and the remaining One
Million One Hundred Thousand Dollars ($1,100,000) of this amount shall be
considered Prepaid Development Funding (as such term is hereinafter
defined).”
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b.
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Section 2.b. is
hereby amended by deleting the section in its entirety and replacing it
with the
following language:
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“b.
For purposes of this Agreement, the term “Standstill Period” shall mean the period
of time commencing on the Effective Date and ending on the one (1) year
anniversary of the Effective Date; provided, however, that the parties may
mutually agree to extend the Standstill Period for up to an additional six (6)
months in the event that the In Vitro Milestones and/or the Animal Milestone
(each as defined below) have not been met prior to the one (1) year anniversary
of the Effective Date. ”
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c.
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Section 3.a. is
hereby amended by deleting the term “Initial Standstill Payment” from the
third
sentence and replacing it with the term “Standstill
Payment”.
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d.
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Section 3.d. is
hereby amended by deleting the first sentence of such Section 3.d. in
its entirety.
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3.
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Payments.
Medgenics acknowledges that it has, prior to the date of this Second
Amendment, received from Baxter a payment in the amount of $1,200,000 (the
“Initial
Payment”). Medgenics further agrees that the Initial Payment
represents and was made in full satisfaction of the amounts required under
Section
1.a. of the Agreement prior to
giving effect to the revisions contemplated by this Second
Amendment. Within thirty (30) days of the execution of this Second
Amendment, Baxter shall pay to Medgenics an additional payment of One
Million Four Hundred Thousand Dollars ($1,400,000) (the “Second
Payment”). Such Second Payment, when combined with the Initial
Payment, shall represent and shall be in full satisfaction of all amounts
required under Section 1
of the Agreement after
giving effect to the amendments contemplated by this Second
Amendment.
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4.
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Effectuation.
The amendment to the Agreement contemplated by this Second Amendment shall
be deemed effective as of the date first written above upon the full
execution of this Second Amendment and without any further action required
by the Parties hereto. There are no conditions precedent or subsequent to
the effectiveness of this Second
Amendment.
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5.
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Counterparts.
This Second Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument. One or more counterparts of this
Second Amendment may be delivered by facsimile, with the intention that
delivery by such means shall have the same effect as delivery of an
original counterpart thereof.
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[Signature
Page Follows]
[Signature
Page to Second Amendment]
IN
WITNESS WHEREOF, the Parties hereto have duly executed this Second
Amendment, as of the date first above written.
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XXXXXX
HEALTHCARE CORPORATION
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By:
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/s/
Xxx X. Xxxxxxxx
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxx
X. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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CVP/President
BioScience
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Title:
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Director
Finance
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XXXXXX
HEALTHCARE S.A.
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By:
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/s/
Xxxxx Xxxxx-Xxxxx
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Name:
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Xxxxx
Xxxxx-Xxxxx
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Title:
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VP
Business Development
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By:
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/s/
Yvo Aobli
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Name:
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Yvo
Aobli
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Title:
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Director,
Finance
Xxxxxx
Healthcare XX
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XXXXXX
INNOVATIONS GmbH
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By:
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/s/
Xxxxxxx X. Xxxxxxx, M.D.
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Name:
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Xxxxxxx
X. Xxxxxxx, M.D.
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Title:
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VP,
Global R&D, Baxter BioScience 29/12/09
Managing
Director, Xxxxxx Innovations GmbH
Member
of the Board of Directors, Baxter XX
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XXXXXX
INNOVATIONS GmbH
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By:
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/s/
Xxxxxx Xxxxxxxx 29/12/09
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Name:
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Xxxxxx Xxxxxxxx | |||
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Title:
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VP
Human Resources and Ops. Support
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