Exhibit 10.9
REDACTED VERSION
EXHIBIT 10.9
to
Poniard Pharmaceuticals,
Inc.’s
Quarterly Report on Form 10-Q
Filed
November 14, 2006
File No. 0-16614
“ [
* ] ” = omitted,
confidential material, which material has been separately filed
with the Securities and Exchange Commission pursuant to a request
for confidential treatment.
AMENDMENT NO. 1 TO LICENSE
AGREEMENT
dated as of September 18, 2006
between
PONIARD PHARMACEUTICALS, INC.
and
ANORMED INC.
AMENDMENT NO. 1 TO
LICENSE AGREEMENT
THIS AMENDMENT NO. 1 TO LICENSE AGREEMENT (this
“ Amendment ”), effective as of September 18,
2006 (the “ Amendment Date ”), is entered into
between ANORMED INC. (“ AnorMED ”), a
corporation organized and existing under the laws of Canada and
having an office at #200 – 20353 64 th
Ave, Langley, BC Canada V2Y 1N5, and PONIARD PHARMACEUTICALS,
INC. (“ Poniard ”), a corporation organized and
existing under the laws of the State of Washington and having an
office at 300 Elliott Avenue West, Suite 500, Seattle, WA 98119,
with respect to the following facts:
WHEREAS, AnorMED
and Poniard (previously NeoRx Corporation) entered into that
License Agreement dated as of April 2, 2004 (the “ License
Agreement ”).
WHEREAS, AnorMED
and Poniard desire to amend the License Agreement in certain
respects, all on the terms and conditions set forth
below.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants
set forth below, the parties hereby amend the License Agreement and
otherwise agree as follows:
1.
Payments . In consideration of the rights granted
hereunder, Poniard shall pay to AnorMED the following amounts at
the times specified:
1.1 On or before October 16, 2006,
Poniard shall pay to AnorMED the sum of five million U.S. dollars
(US$5,000,000).
1.2 On or before March 31, 2007,
Poniard shall pay to AnorMED an additional sum of five million U.S.
dollars (US$5,000,000).
2.
Territory . In connection with the expansion of the
Territory pursuant to Section 3.5 of this Amendment, the parties
acknowledge and agree that the provisions in the License Agreement
regarding providing information or rights to AnorMED’s
licensees outside of the Territory, shall only apply with respect
to any countries if and when excluded from the Territory in
accordance with Section 4.2 (Decision Not to Commercialize) of the
License Agreement.
3.
Amendments .
3.1 The License Agreement is hereby
amended by replacing all uses of “NeoRx Corporation”
with “Poniard Pharmaceuticals, Inc.”, and replacing all
uses of the defined term “NeoRx” with
“Poniard.”
3.2 Section 1.1(v) of the License
Agreement is hereby amended by adding the following new sentence
immediately following the end of Section 1.1(v):
As
used in this Agreement, “end user” shall mean, with
respect to a Licensed Product, the first Person, that has not
obtained from Poniard any license rights under Section 3.1 other
than the right to use, to which such Licensed Product is sold or
otherwise transferred in an arm’s-length, good faith
transaction.
3.3 Section 1.1(dd) of the License
Agreement is hereby amended and replaced in its entirety with the
following:
(dd)
“ Sublicensee ” shall mean any Person who has
obtained license rights from Poniard under the license granted to
Poniard under Section 3.1, including, without limitation,
sublicensees of Poniard and its Affiliates, sublicensees of such
sublicensees (i.e. subsublicensees), distributors and any other
Person who may sell or otherwise transfer Licensed Product to end
users (as defined in Section 1.1(v)) of the Licensed Product, in
each case under such license rights;
and each
occurrence of the term “sublicensee” and
“sublicensees” set out in the License Agreement is
hereby replaced with the defined terms “Sublicensee”
and “Sublicensees”, respectively.
3.4 Section 1.1(ee) of the License
Agreement is hereby amended and replaced in its entirety with the
following:
(ee)
[intentionally omitted];
3.5 Section 1.1(gg) of the License
Agreement is hereby amended and restated in its entirety as
follows:
(gg)
“ Territory ” shall mean world-wide;
3.6 Section 6.3 of the License
Agreement is hereby amended and restated in its entirety as
follows:
6.3
Milestone Payments
In
consideration of the license granted under Article 3, Poniard shall
pay to AnorMED the following milestone payments upon the first
occurrence of each of the commercialization milestones set forth
below:
(a)
[intentionally omitted];
(b)
[intentionally omitted];
(c)
[intentionally omitted];
(d)
[ * ] upon [ *
] ; and
[ *
] Confidential Treatment Requested
(e)
[ * ] upon [ *
] .
For
purposes of this Section 6.3, “ control ” in the
definition of Affiliate shall mean direct or indirect beneficial
ownership of [ * ] or greater
interest in the income of a Person or such other relationship as,
in fact, constitutes actual control.
3.7 Section 6.4, subsection (a) of
the License Agreement is hereby amended and restated in its
entirety as follows:
(a)
[intentionally omitted];
3.8 Section 6.4, subsection (b) of
the License Agreement is hereby amended and restated in its
entirety as follows:
(b)
Each milestone payment to be made by Poniard under Subsections
6.3(d) and 6.3(e) shall be made in cash, by certified cheque
payable to the order of AnorMED or by bank transfer to the
co-ordinates given by AnorMED to Poniard.
3.9 Section 7.2 of the License
Agreement is hereby amended and restated in its entirety as
follows:
7.2
Basic Royalty .
In consideration of the
license granted under Article 3, Poniard shall pay to AnorMED,
without duplication, in respect of each Licensed
Product:
(a)
for all Patent Pending Countries where no Competition exists and
all Issued Patent Countries, a royalty on Net Sales of such
Licensed Product by Poniard and its Affiliates and any Sublicensees
in each calendar year as follows:
(i)
[ * ] of the first [
* ] of such Net Sales in the calendar year, calculated
cumulatively among all Patent Pending Countries where no
Competition exists and all Issued Patent Countries, world-wide;
(ii)
[ * ] of such Net Sales in excess of the
first [ * ] but less than
[ * ] in the calendar year, where such
amounts are calculated cumulatively among all Patent Pending
Countries where no Competition exists and all Issued Patent
Countries, world-wide;
(iii)
[ * ] of such Net Sales in excess of the
first [ * ] but less than
[ * ] in the calendar year, where such
amounts are calculated cumulatively among all Patent Pending
Countries where no
