EXHIBIT 10.1
CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND
REPLACED WITH “***”. A COMPLETE VERSION OF THIS EXHIBIT
HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING
CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE EXCHANGE ACT OF
1934.
AMENDMENT TO THE
LICENSE AND COOPERATION AGREEMENT
THIS AMENDMENT to that certain April 16, 1998 License
and Cooperation Agreement (“Agreement”) by and among
Merz + Co. GmbH & Co. (“Merz”), Neurobiological
Technologies, Inc. (“NTI”) and Children’s Medical
Center Corporation (“CMCC”) is entered into effective
as of the 15 th day of
February, 2008 by and among Merz, NTI and CMCC (each of which may
be referred to herein individually as a “Party” and
collectively as the “Parties”). Capitalized terms used
in this Amendment shall have the meanings ascribed to them in the
Agreement.
WHEREAS, pursuant to the Agreement, CMCC and NTI granted to
Merz certain rights relating to memantine and imposed upon Merz
certain royalty obligations; and
WHEREAS the Parties, having reevaluated the subject matter
of the Agreement, wish to modify the financial terms set forth in
the Agreement, along with certain ancillary provisions relating to
the rights and obligations of the Parties;
NOW, THEREFORE, pursuant to Section 19.7 of the
Agreement, the terms and conditions of the Agreement are amended as
follows:
1. The definition of “Royalty Income” shall
be amended by adding, at the very end of such definition, the
following sentence: “Provided, further, that Royalty Income
shall expressly exclude any and all income derived from any
license, development and/or marketing agreement for Products
outside the United States and shall expressly be limited to income
derived from the sale of Products in the United States and Merz
shall have no obligation whatsoever to share with NTI or CMCC
Royalty Income derived from the marketing, licensing or commercial
exploitation of Products outside the United States.”
2. Section 5.2 of the Agreement shall be amended by
deleting from the last sentence thereof the phrase “and
subject to Exhibit C”.
3. Exhibit C of the Agreement shall be stricken in its
entirety and replaced with the following:
With respect
to Royalty Income derived from the sale of Products for the Merz
Indication in the United States, the parties shall be entitled to
the following collective percentage share of the Royalty
Income:
