Exhibit 10.77
AMENDMENT NO. 2 TO LICENSE
AGREEMENT
This Amendment No. 2 to License
Agreement (the “Amendment”) is made and entered into as
of the 17th day of October, 2008 (“Effective Date”), by
and between SOLVAY PHARMACEUTICALS, INC., a Georgia
corporation having its principal office at 901 Sawyer Road,
Marietta, Georgia 30062 (“Solvay”) and JPI
COMMERCIAL, LLC, a Delaware limited liability corporation and
wholly-owned subsidiary of Jazz Pharmaceuticals, Inc., a
Delaware corporation (“Jazz Pharmaceuticals”), having
its principal offices at 3180 Porter Drive, Palo Alto, California
94304 (“JPI”). Solvay and JPI are referred to herein on
occasion separately as a “Party” or together as the
“Parties”. Capitalized terms used herein shall have
their respective meanings set forth in the License Agreement,
unless otherwise defined herein.
WHEREAS, Solvay and
Jazz Pharmaceuticals entered into that certain License Agreement
(the “Agreement”) dated as of the 31
st
day of January,
2007, as amended on March 12, 2008;
WHEREAS, in accordance with
Section 13.8 of the Agreement, Jazz Pharmaceuticals assigned
the Agreement to JPI, it wholly-owned subsidiary, pursuant to that
certain Assignment and Assumption Agreement dated March 17,
2008;
WHEREAS, Jazz
Pharmaceuticals and JPI have entered into that certain
LUVOX CR ® License Agreement dated
March 17, 2008 whereby Jazz Pharmaceuticals has the exclusive
right to develop, make, have made, use and sell LUVOX CR in the
Territory; and
WHEREAS, the Parties wish to amend
the Agreement in accordance with Section 13.6 of the Agreement
to change the times when certain payments are due from JPI to
Solvay;
NOW, THEREFORE, in consideration of
the mutual covenants and promises set forth in this Amendment, the
Parties agree as follows:
1. Amendment of Definitions
.
(a) Section 1.11 of the
Agreement is amended and replaced in its entirety with the
following:
“1.11 Milestones
” means the events identified in Sections 3.1 (b)
through (l).”
(b) Section 1.12 of the
Agreement is amended and replaced in its entirety with the
following:
“1.12 “ Milestone
Payments ” means the payments to be made by JPI to Solvay
pursuant to Sections 3.1 (b) through (l).”
2. Amendment of Section 3.1 .
Section 3.1 of the Agreement is amended and replaced in its
entirety with the following:
“3.1 Upfront Payment and
Milestone Payments . As consideration for the license granted
by Solvay to JPI hereunder, JPI will make the following upfront
a
