Exhibit 10.26
AMENDMENT NO. 2 TO THE CO-DEVELOPMENT AGREEMENT
This Amendment No. 2 to Co-Development Agreement, is made and effective on
December 31, 2003 (the "Second Amendment"),
by and between Bioenvision, Inc., a
corporation having its principal
executive office at
509 Madison Avenue,
Suite
404, New York, New York 10022 ("Bioenvision") and ILEX Products, Inc., a
corporation having its principal executive office at 4545 Horizon Hill
Blvd.,
San Antonio, Texas 78229-2263.
WITNESSETH:
WHEREAS,
Bioenvision and
ILEX Oncology, Inc. are parties to a
co-development agreement entered into and
effective March 12, 2001 (as amended,
the "Agreement");
WHEREAS, subject to
Section 23 of the Agreement, ILEX Oncology, Inc.
assigned the Agreement and all of its
business assets
relating to the Agreement
to ILEX Products, Inc., a wholly-owned subsidiary of ILEX Oncology, Inc.
("ILEX") on March 15, 2002;
WHEREAS, on
September 2, 2003, Bioenvision and ILEX entered into a
Letter Agreement for Co-Development of an
Oral Clofarabine Formulation and First
Amendment to Co-Development Agreement (the
"First Amendment");
WHEREAS, pursuant to Section 25.2 of the Agreement, ILEX is
desirous of
further amending the Agreement to enable
ILEX to accelerate the granting of the
exclusive sub-license by Bioenvision to ILEX
for Clofarabine or any
Product in
the USA and Canada as set forth in Article
6.1, in exchange for ILEX agreeing to
accelerate the payments made to
Bioenvision
under Articles 3.4 and
3.6 so that
Bioenvision receives payments on earlier
dates than otherwise required under the
Agreement with a larger portion of the total amount of the
payments being paid
initially; and
WHEREAS, Bioenvision
is agreeable to the accelerated sub-license grant
and payment schedule proposed by ILEX, subject to the provisions set
forth in
the Second Amendment.
NOW, THEREFORE,
in consideration of the premises and the mutual
covenants and agreements herein contained, ILEX, Bioenvision and SRI agree as
follows:
As used throughout
the Second Amendment unless otherwise defined
herein, the capitalized terms shall have the meanings
ascribed to them in
the
Agreement.
1. Section 6.1 of the Agreement shall be renamed Section 6.1(a)
and
Section 6.1(a) shall be amended by adding
the following after the third sentence
thereof:
"Notwithstanding the foregoing sentence,
the exclusive sub-license referenced
therein shall earlier become effective, if
and only if ILEX makes payment to
Bioenvision of US$3.5 million by
irrevocable wire tran
