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AMENDMENT TO LICENSE AGREEMENT

License Agreement

AMENDMENT TO LICENSE AGREEMENT | Document Parties: SANTARUS INC | Biogen Idec MA Inc | Covella Pharmaceuticals, Inc | Santarus, Inc You are currently viewing:
This License Agreement involves

SANTARUS INC | Biogen Idec MA Inc | Covella Pharmaceuticals, Inc | Santarus, Inc

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Title: AMENDMENT TO LICENSE AGREEMENT
Date: 11/9/2010
Industry: Biotechnology and Drugs     Law Firm: Latham Watkins     Sector: Healthcare

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Exhibit 10.9

CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

Execution Version

AMENDMENT TO LICENSE AGREEMENT

     THIS AMENDMENT TO LICENSE AGREEMENT, dated as of September 10, 2010 (the “ Amendment ”), is entered into among Biogen Idec MA Inc. (“ Biogen Idec ”), Covella Pharmaceuticals, Inc. (“Covella”) and Santarus, Inc. (“ Santarus ”) (hereinafter collectively, the “ Parties ”).

BACKGROUND

A.

 

Biogen Idec and Covella entered into a License Agreement (the “ Agreement ”) dated as of January 22, 2009 pursuant to which Covella obtained an exclusive license to the patents and certain know-how and other intellectual property owned or controlled by Biogen Idec relating to Anti-VLA1 integrin antibodies (“ Anti-VLA1 Antibody Program ”).

B.

 

Covella has entered into an Agreement and Plan of Merger dated as of September 10, 2010 (the “ Merger Agreement ”) with Santarus and Lawrence C. Fritz as the Stockholder Representative pursuant to which Covella will merge with a wholly-owned subsidiary of Santarus, with Covella surviving (the “ Merger ”). As a condition to the Merger, this Amendment is required to be entered into by the Parties.

     NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein contained, and for other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties hereby agree as follows:

AGREEMENT

1.

 

Interpretation

     Except as otherwise provided in this Amendment, words and expressions used in this Amendment have the same meaning as in the Agreement.

2.

 

Amendments

     With effect on and from the date of this Amendment, the following amendments are made to the Agreement:

     (a) Section 1.42 shall be amended to read in its entirety:

 

 

 

“1.42 “ Subject Transaction ” shall mean any sublicense under this Agreement to a Third Party that includes the right to

1


 

          commercialize a Licensed Product within the Territory or any portion thereof.”

     (b) Section 2.8(b) shall be deleted in its entirety.

     (c) Section 5.1 shall be deleted in its entirety.

     (d) Section 5.2(e) shall be deleted in its entirety, and the reference to Section 5.2(e) in Section 5.4(a) shall be deleted.

     (e) Section 7.5 shall be deleted in its entirety.

     (f) Section 8.1 shall be deleted in its entirety and Section 8.2 shall be amended to read in its entirety as follows:

     “8.2 Adjustment Discussions . [***]”

     (g) Section 9.1(a) shall be amended by deleting the words “pursue or” in clause (i), deleting clause (ii) and deleting the last sentence in its entirety and replacing it with the following sentence: “For purposes of Section 9.1, the phrase “confidential data package” shall be deemed to mean a confidential package of pre-clinical and clinical trial data from pre-clinical or clinical trials conducted after the date of this Amendment by or on behalf of Covella with respect to a Licensed Product.”

     (h) Clause (i) of Section 9.1(c) shall be amended by adding the following proviso at the end of the first sentence: “; provided, however, that the determination of whether the terms of an agreement with a Third Party are equal to or less favorable in the aggregate than those specified in the last written term sheet provided by Biogen Idec shall be made in the reasonable discretion of Santarus.” (i) Section 9.1(d) shall be amended to replace “Covella” with “Santarus, Inc.” in clause

     (i) and by deleting clause (ii).

     (j) Section 12.4(b) and Section 12.4(c) shall be deleted in their entirety.

     (k) The last sentence of Section 15.11 shall be deleted in its entirety and replaced with the following sentence: “This Agreement, as amended by the Amendment, may be further amended, and any term of this Agreement, as amended by the Amendment; may be modified, only by a written instrument executed by a duly authorized representative of Biogen Idec, Santarus and, so long as Covella exists, Covella.

 

***

 

Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

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     (l) Section 15.4 shall be amended by deleting the notice provisions relating to Covella and its counsel and replacing them with the following:

To Santarus and Covella :

Santarus, Inc.
3721 Valley Center Drive, Suite 400
San Diego, CA 92130
Attention:    Legal Affairs Department
Facsimile:    858-314-5701
Telephone:   858-314-5700

With a copy to (which shall not constitute notice hereunder):

Latham & Watkins LLP
12636 High Bluff Drive, Suite 400
San Diego, CA 92130
Attention:    Scott N. Wolfe
Facsimile:    858-523-5450
Telephone:   858-523-5400

     (m) The second sentence of Exhibit 1.4 shall be deleted in its entirety and replaced with the following: “Biogen Idec shall deliver to Santarus the Biogen Idec Know-How indicated as “[***]” below within [***] ([***]) days of receipt of a written request from Santarus, which request must be sent by Santarus within [***] ([***]) days of the date of this Amendment.”

     (n)


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