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Exhibit
10.7
AMENDMENT NO.
1
TO
PATENT RIGHTS AND RELATED
ASSETS PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO THE
PATENT RIGHTS AND RELATED ASSETS PURCHASE AGREEMENT (this
“Amendment”), dated as of February 23rd, 2007, is
by and between VIA PHARMACEUTICALS, INC., a Delaware corporation
having an address of 750 Battery St., Suite 330, San Francisco,
California 94111 (the “Acquirer”), and NEURO3D, S.A., a
French corporation having an address of 130 rue de la Mer Rouge,
F-68200, Mulhouse, France (the “Company”).
Recitals
WHEREAS, the Acquirer and the
Company are parties to that certain Patent Rights and Related
Assets Purchase Agreement, dated as of January 25th, 2007 (the
“Purchase Agreement”); and
WHEREAS, the Acquirer and the
Company desire to amend said Purchase Agreement as more fully
described herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
1. Capitalized Terms .
Capitalized Terms used, but not defined, herein, shall have the
meanings ascribed to such terms in the Purchase
Agreement.
2. Amendments to Purchase
Agreement .
(a) Purchase Price .
Section 2.2 of the Purchase Agreement is hereby deleted in its
entirety, and the following new Section 2.2 shall be
substituted in lieu thereof:
“2.2 Purchase
Price . The aggregate purchase price payable by the Acquirer
for the Acquired Assets (the “Purchase Price”) shall be
$1,800,000 in U.S. currency. US $1,600,000 of the Purchase
Price paid by the Acquirer is in consideration for the Co-owned
Patents. The Purchase Price shall be paid by the Acquirer to the
Company in two installments as set forth in Sections 2.2(a) and
2.2(b).
(a) The first installment of
the Purchase Price shall be paid at the Closing. The aggregate
amount of the first installment of the Purchase Price shall be
$1,600,000 in U.S. currency.
(b) The second installment of
the Purchase Price shall be paid at the earlier of (i) the
initiation by the Acquirer of IND-enabling studies for a Neuro3D
Compound; and (ii) the first anniversary of the Closing Date.
The aggregate amount of the second installment of the Purchase
Price shall be $200,000 in U.S. currency.”
(b) Indemnification .
Section 8 of the Purchase Agreement is hereby deleted in its
entirety, and the following new Section 8 shall be substituted
in lieu thereof:
“8.
INDEMNIFICATION.
8.1. By the Company .
From and after the Closing Date, to the extent provided in this
Section 8, the Company shall indemnify and hold harmless the
Acquirer, and its successors and assigns, and its officers and
directors (each, an “Indemnified Party”) from and
against any Liabilities, claims, demands, judgments, losses, costs,
damages or expenses whatsoever (including reasonable
attorneys’ fees incurred by such Indemnified Party in
connection therewith) (collectively, “Damages”) that
such Indemnified Party may sustain, suffer or incur and that result
from, arise out of or relate to (a) any breach of any
representation, warranty, covenant or agreement of the Company
contained in this Agreement, whether or not involving a third-party
claim, (b) any Litigation affecting the Company or the
Acquired Assets that arose from any matter or state of facts
existing prior to the Closing, (c) any Retained Liabilities,
or (d) the failure by the Company to comply with the
provisions of the laws of any jurisdiction relating to the transfer
of assets which may be applicable to the transfer of the Acquired
Assets; provided that the foregoing indemnification shall not apply
to any Damage to the extent such Damage is caused by the breach of
this Agreement or the negligence or willful misconduct of the
Acquirer or its Affiliates and their current or former employees,
officers and directors or is otherwise subject to an obligation by
Acquirer to indemnify Company under section 8.2.
8.2 By the Acquirer .
From and after the Closing Date, to the extent provided in this
Section 8, the Acquirer shall indemnify and hold harmless the
Company, the Stockholders, their heirs, legal representatives,
successors and assigns (each, an “Indemnified Party”)
from and against any Damages that such Indemnified Party may
sustain, suffer or incur and that result from, arise out of or
relate to (a) any breach of any representation, warranty,
covenant or agreement of the Acquirer contained in this Agreement,
whether or not involving a third-party claim, (b) the failure
by the Acquirer to comply with the provisions of the laws of any
jurisdiction relating to the transfer of assets which may be
applicable to the transfer of the Acquired Assets, or (c) any
liability arising out of the development or exploitation of the
Acquired Assets by the Acquirer or its Affiliates including without
limitation clinical trials and product sales, other than any
liability arising out of or relating to any matter or state of
facts existing prior to the Closing Date; provided that the
foregoing indemnification shall not apply to any Damage to the
extent such Damage is caused by the breach of this Agreement or the
negligence or willful misconduct of the Company or its Affiliates
and their current or former employees, officers and directors or is
otherwise subject to an obligation by the Company to indemnify the
Acquirer under section 8.1.
8.3 Procedure for
Claims .
(a) An Indemnified Party that
desires to seek indemnification under any part of this
Section 8 shall give notice (a “Claim Notice”) to
each Party responsible or alleged to be responsible for
indemnification hereunder (an “Indemnitor”) prior to
any applicable Expiration Date specified below. Such notice shall
briefly explain the nature of the claim and shall specify the
amount thereof. If the matter to which a claim relates shall not
have been resolved as of the date of the Claim Notice, the
Indemnified Party shall estimate the amount of the claim in the
Claim Notice, but also specify therein that the claim has
not
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yet been liquidated (an
“Unliquidated Claim”). If an Indemnified Party gives a
Claim Notice for an Unliquidated Claim, the Indemnified Party shall
also give a second Claim Notice (the “Liquidated Claim
Notice”) within 60 days after the matter giving rise to the
claim becomes finally resolved, and the Second Claim Notice shall
specify the amount of the claim. Each Indemnitor to which a Claim
Notice is given shall respond to any Indemnified Party that has
given a Claim Notice (a “Claim Response”) within 20
days (the “Response Period”) after the later of
(i) the date that the Claim Notice is given or (ii) if a
Claim Notice is first given with respect to an Unliquidated Claim,
the date on which the Liquidated Claim Notice is given. Any Claim
Notice or Claim Response shall be given in accordance with the
notice requirements hereunder, and any Claim Response shall specify
whether or not the Indemnitor giving the Claim Response
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