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EXHIBIT 10.127
AMENDMENT NO. 1
THIS AMENDMENT is entered into the 2nd day of June 2000
BETWEEN:
(1) AXYS PHARMACEUTICALS, INC., a Delaware Corporation having a
principle place of business at 180 Kimball Way, South San Francisco, CA 94080,
USA ("Axys"); and
(2) AVENTIS PHARMACEUTICALS PRODUCTS INC. (formerly known as
RHONE-POULENC RORER PHARMACEUTICALS INC.), a Delaware Corporation having a place
of business at 500 Arcola Road, Collegeville, Pennsylvania 19426, USA ("APPI").
RECITALS:
(A) Under a Collaborative Research and License Agreement dated 11
December 1998 (the "Collaborative Research and License Agreement"), Axys and
APPI agreed to collaborate in the discovery, development and commercialisation
of Cathepsin S inhibitors for use in the prevention and/or treatment of certain
human diseases.
(B) In Article 6.3(a) of the Collaborative Research and License
Agreement, [*] payments are proposed for each of:
(i) first demonstration of [*] in an [*] for any [*];
(ii) first satisfaction of the [*] for any [*];
(iii) first satisfaction of [*] for any [*]; and
(iv) first satisfaction of [*] by an [*].
(C) In the newly-formed pharmaceuticals business of Aventis Pharma,
contemplated in Article 11.2 of the Collaborative Research and License
Agreement, the criteria identified in Recitals (B) [*] above [*], and [*] are
modified.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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(D) APPI will continue to honour the [*] payments set out in Article
6.3(a) of the Collaborative Research and License Agreement. This Amendment
formalises the mechanism for payment of the [*] described in Recitals (B) [*]
above, and sets out the [*] in Appendix 1 hereinafter.
NOW, THEREFORE, IN CONSIDERATION OF THE VARIOUS PROMISES AND
UNDERTAKINGS SET FORTH HEREIN, AXYS AND APPI AGREE AS FOLLOWS:
1. Words and expressions defined in the Collaborative Research and
License Agreement shall have the same meaning in this Amendment.
2. Article 6.3 of the Collaborative Research and License Agreement is
hereby amended to re-define the [*] which shall have the meaning set forth in
Appendix 1 hereinafter, unless subsequently further modified by [*]. Any further
changes to the [*] will be communicated to the [*], which will determine in good
faith if any such changes necessitate an amendment to the Collaborative Research
and License Agreement.
3. Exhibit A, "Phase Transition Criteria", of the Collaborative Research
and License Agreement is hereby amended by the deletion of [*], which section of
Exhibit A shall be restated in its entirety to read in full as set forth in
Appendix 1 hereafter. Determination of the completion of all elements of
Appendix A to trigger the payment described in Recital (B) [*] above will be
made by a decision of the [*], or such other [*] shall hereafter determine.
4. All elements of [*] and [*] of Exhibit A, "Phase Transition
Criteria", of the Collaborative Research and License Agreement are hereby
retained. Determination of the completion of all such elements to trigger the
payments described in Recitals (B) [*] above will be made by a decision of the
[*] in accordance with the process defined in [*] of the Collaborative Research
and License Agreement.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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5. Article 1.2 of the Collaborative Research and License Agreement is
hereby amended and restated to read in full as follows:
"1.2 "Affiliate" with respect to Axys, shall mean any Person
controlling, controlled by, or under common control with Axys. With
respect to APPI, "Affiliate" shall mean any Person controlled by
Rhone-Poulenc Rorer Inc., a Pennsylvania corporation, or Aventis Pharma
Holding GmbH or Aventis Pharma AG, both of which are German
corporations. For purposes of this Section 1.2 only, "control" shall
refer to (a) the possession, directly or indirectly, of the power to
direct the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise or (b) the
ownership, directly or indirectly, of at least 50% (or, if less, the
maximum ownership interest permitted by law) of the voting securities or
other ownership interest of a Person."
6. Article 11.2 of the Collaborative Research and License Agreement is
hereby amended and restated to read in full as follows:
Except as expressly provided herein, neither this Agreement nor any
interest hereunder shall be assignable, nor any other obligation
delegable, by a Party without the prior written consent of the other;
provided, however, that a Party may assign this Agreement to any
Affiliate or to any successor in interest by way of merger or sale of
all or substantially all of its assets in a manner such that the
assignor shall remain liable and responsible for the performance and
observance of all such Party's duties and obligations hereunder. This
Agreement shall be binding upon the successors and permitted assigns of
the Parties. Any assignment not in accordance with this Section 11.2
shall be void. On December 15, 1999, Rhone-Poulenc S.A. combined its
life science businesses with those of Hoechst AG by acquiring all of the
outstanding voting securities of Hoechst AG through a tender offer (the
"Merger"). Upon consummation of the Merger, Rhone-Poulenc S.A. renamed
the combined company Aventis S.A. ("Aventis"). It is the Parties'
intention that this Agreement shall [*], but not to the [*]. As a result
of the
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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Merger, the parties [*]. While the ultimate corporate structure of Aventis'
human pharmaceuticals business has not yet been determined, it is expected that
Aventis will consolidate the operations of RPR and the entities which formerly
comprised Hoechst Marion Roussel. In the event of such restructuring, the
Parties agree to negotiate further appropriate modifications to this Agreement
(whether by amendment of the definition of "Affiliate" as it relates to RPR or
otherwise) to reflect the intention described in this Section 11.2.
7. All references in the Collaborative Research and License Agreement to
Rhone Poulenc S.A. are hereby amended to refer to Aventis S.A., and all
references in such agreement to Rhone-Poulenc Rorer Pharmaceuticals Inc. or RPR
are hereby amended to refer to Aventis Pharmaceuticals Products Inc. or APPI,
respectively.
8. The address to which notices shall be delivered to APPI pursuant to
Section 11.4 of the Collaborative Research and License Agreement is hereby
changed to:
Aventis Pharmaceuticals Products Inc.
Route 202/206
Bridgewater, New Jersey 08807
Attention: General Counsel
9. The amendments set out in this Amendment shall have effect as of
December 15, 1999, with the exception of Paragraph 8 which shall have effect as
of May 1, 2000. Except as expressly modified by this Amendment, all of the terms
and conditions of the Collaborative Research and License Agreement shall remain
in full force and effect.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to be
executed by their respective duly authorised officers as of the day and year
first written above, each copy of which shall for all purposes be deemed to be
an original:
AXYS PHARMACEUTICALS, INC. AVENTIS
PHARMACEUTICALS
PRODUCTS INC.
By: By:
-------------------------------- ---------------------------------
Name: Michael C. Venuti Name: Ross J. Oehler
Title: Sr. Vice President Title: Assistant Secretary
Research & Preclin Dev.
Chief Technical Officer
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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APPENDIX I
[*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
