Exhibit 10.12(b)
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED
LICENSE AGREEMENT
This First Amendment to First
Amended and Restated License Agreement (the “ First
Amendment ”) is entered into and effective as of
December 10, 2008 by and between Helix BioMedix, Inc. a
Delaware corporation with its principal place of business at 22118
- 20th Avenue SE, Suite 204, Bothell, WA 98021 (“
Licensor ”), and Grant Industries, Inc. a New Jersey
corporation with its principal place of business at 103 Main
Avenue, Elmwood Park, NJ 07407 (“ Licensee ”).
Capitalized terms included in this First Amendment and not
otherwise defined herein have the meanings given to them in the
Agreement (as defined below).
RECITALS
A. Licensor and Licensee are parties
to the First Amended and Restated License Agreement dated as of
September 12, 2007 (the “ Agreement
”).
B. Licensor and Licensee wish to
amend the Agreement as set forth herein.
AGREEMENT
1.1 Effectiveness . The
amendments set forth herein shall be effective as of the date of
this First Amendment and shall not have retroactive
effect.
1.2 Definitions . The
following definitions in Section 1 of the Agreement are hereby
deleted and replaced in their entirety by the following:
1.10 “ Peptide A
,” “ Peptide B ,” “ Peptide C
,” “ Peptide D ,” “ Peptide E
,” “ Peptide F ” and “ Peptide
G ” have the meanings given in Exhibit A
.
1.3 License .
Section 2.1 of the Agreement is hereby deleted and replaced in
its entirety by the following:
2.1 License . Subject to the
terms and conditions of this Agreement, Licensor hereby grants to
Licensee a right and license, under the Patents and the Know-How,
to (i) purchase the Peptides in pure form, at Licensee’s
expense, from a manufacturer approved in advance by Licensor in
writing (or from Licensor, subject to availability and on terms as
may be agreed between Licensee and Licensor); (ii) formulate
the Peptides into Premix; provided that no Premix may contain more
than one Peptide; and (iii) market, sell and distribute the
Premix to manufacturers in the Market in accordance with
Section 2.2, in each case in the Territory and for commercial
purposes only. The licenses granted herein shall be non-exclusive
with respect to Peptide A, and Licensee acknowledges and agrees
that Licensor intends to grant the same or similar rights to other
parties. The
Confidential treatment has been requested for
portions of this Amendment. This Amendment omits the information
subject to the confidential treatment request. Omissions are
designated as ***. A complete version of this exhibit has been
filed separately with the Securities and Exchange
Commission.
licenses granted herein with respect
to Peptide B, Peptide C, Peptide D, Peptide E and Peptide G shall
be exclusive (including as against Licensor) with respect to the
rights granted in Section 2.1(ii) and (iii) and with
respect to Peptide F shall be exclusive (including as against
Licensor) with respect to the rights granted in
Section 2.1(ii) and (iii) only as to the marketing, sales
and distribution of Peptide F by Licensee to ***.
1.4 Term of Insurance .
Section 10.3 of the Agreement is hereby deleted and replaced
in its entirety by the following:
10.3 Term of Insurance . Each
Party shall maintain such commercial general liability insurance
beyond the expiration or termination of this Agreement during the
period that any products containing, incorporating or based on any
Peptide are commercially marketed, distributed or sold by Licensee
or any Sublicensee and for a period of at least twelve
(12) months after the stated expiration dates of any such
products.
1.5 Term . Section 13.1
of the Agreement is hereby deleted and replaced in its entirety by
the following:
13.1 Term . The term of the
Agreement shall begin on the Effective Date and shall continue
until December 31, 2011, unless terminated at an earlier date
pursuant to the terms and conditions set forth below in this
Section 13. This Agreement shall automatically renew for
successive one (1) year terms provided the Minimum Royalty
Payment requirements set forth in Exhibit C are achieved in
the prior year and unless either Party provides written notice to
the other Party at least sixty
