EXHIBIT 10.46
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED BASED UPON A REQUEST
FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934 AND HAVE BEEN SEPARATELY FILED
WITH THE COMMISSION.
AMENDMENT TO TIMOLOL AGREEMENT
This Amendment (the "Amendment") is made this 13th day of August, 2002,
by and between ISTA Pharmaceuticals, Inc., a Delaware corporation ("ISTA"), and
Senju Pharmaceutical Co., Ltd., a legal entity organized and existing under the
laws of Japan ("Senju").
WHEREAS, AcSentient, Inc., a Delaware corporation ("AcSentient"), sold
and assigned to ISTA all of AcSentient's rights and certain of its obligations
and liabilities under the Agreement by and between Senju and AcSentient, dated
as of April 17, 2002 regarding timolol ophthalmic preparation (the "Agreement"),
and ISTA has therefore become a party to the Agreement and Senju has elected to
continue the Agreement with ISTA;
WHEREAS, SENJU and ISTA hereby desire to amend the provisions of the
Agreement and desire to confirm their respective obligations under the
Agreement;
NOW, THEREFORE, ISTA and Senju agree that:
1. Capitalized wordings used in this Amendment shall have the
meanings set forth in the Agreement. All references to
AcSentient in the Agreement shall hereby refer to ISTA.
2. Paragraph 5.04 of the Agreement shall be amended to read in
its entirety;
5.04 All of the running royalties including minimum
royalties in paragraph 5.01 through 5.03 shall be paid to
SENJU within [ * ] following the end of each semi- annual
period according to SENJU's fiscal year which commences April
1 of a year and ends March 31 of the next year. [ * ] [ * ]
[ * ] [ * ]
3. Paragraph 6.01 of the Agreement shall be amended to read in
its entirety;
6.01 Upon the remittance of royalty from ISTA to SENJU
under paragraph 5.04 hereof, ISTA shall furnish SENJU with an
accurate report stating the total quantity of the Preparation
in units sold by ISTA and ISTA Agent during the preceding
semi-annual period, the grossed invoiced sales price and the
Net Sales thereof and amount of the royalties accrued,
together with written reports regarding marketing activities
stipulated in paragraphs 8.01 through 8.03 herein.
* CONFIDENTIAL PORTIONS HAVE BEEN OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934 AND
HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
4. Paragraph 18.07 shall be deleted in its entirety.
5. Article 22 of the Agreement shall be amended to read in its
entirety;
This Agreement is personal to the Parties hereto and shall not
be assignable, transferable or saleable to any Third Party by
either party without the prior express written consent of the
other Party, such consent not to be unreasonable withheld;
provided, however, that no such consent shall be required from
SENJU if ISTA is merged or acquired by a Third Party.
6. Unless stated herein, all other terms and conditions of the
Agreement shall remain unchanged.
7. This Amendment shall be effective as of the date first set
forth above.
8. This Amendment, taken together with the Agreement, represent
the entire agreement of the parties and shall supersede any
and all previous contracts, arrangements or understandings
between the parties with respect to the Agreement.
9. This Amendment may be amended at any time only by mutual
written agreement of the parties hereto.
10. This Amendment may be executed in counterparts, each of which
so executed will be deemed to be an original and such
counterparts together will constitute one and the same
agreement.
IN WITNESS WHEREOF, this Amendment has been entered into as of the date
first set forth above.
ISTA PHARMACEUTICALS, INC. SENJU PHARMACEUTICAL CO., LTD.
By: /s/ Xxxxxxx Xxxxx, Xx., Ph.D. By: /s/ Xxxxx Xxxxxxxx
----------------------------------- ----------------------------
Name: Xxxxxxx Xxxxx, Xx., Ph.D. Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer Title: Executive Vice President
