Pursuant to 17 CFR 240.24b-2, confidential information has been
omitted in places marked “[Intentionally Redacted]” and
has been filed separately with the Securities and Exchange
Commission pursuant to a Confidential Treatment Application filed
with the Commission.
EXHIBIT 10.3
FIRST AMENDMENT TO LICENCE AGREEMENT
DATED AUGUST 28, 2001 BETWEEN
JOHNSON MATTHEY PLC
AND
NEOTHERAPEUTICS, INC.
This
First Amendment to License Agreement (“FIRST
AMENDMENT”) is entered into and effective this 30th day of
September 2002 by and between Johnson Matthey PLC, a company
organised under the laws of England and Wales whose registered
office is at 2-4 Cockspur Street, Trafalgar Square, London, SW1Y
5BQ, England, acting for itself and for its AFFILIATES including
particularly Johnson Matthey, Inc (collectively,
“LICENSOR”), and NeoTherapeutics, Inc., a corporation
organized under the laws of the State of California, United States
of America whose principal place of business is at 157 Technology
Drive, Irvine, California 92618, United States of America with
reference to the following facts and on the following terms and
conditions.
RECITALS
(A) Effective August 28, 2001, LICENSOR and LICENSEE
entered into the License Agreement (the “LICENSE”)
pursuant to which LICENSOR granted a license for the use of
technical information relating to the use of platinum complex JM216
in the treatment of tumor cells as well as for the use of the
PATENT RIGHTS (as defined in the LICENSE). All defined terms in
this FIRST AMENDMENT (as set forth in capital letters) shall have
the same meaning as set forth in the LICENSE.
(B) The parties now wish to amend and modify the LICENSE on
the terms and conditions as set forth in this FIRST
AMENDMENT.
Now
therefore, for good and valuable consideration, the parties agree
as follows:
1
(1) ARTICLE I
Paragraph 16 of Article I of the LICENSE shall be amended
to read as follows:
TERM:
the term commencing on the EFFECTIVE DATE and terminating on a
country-by-country basis upon the expiry of the last to expire of
the patents granted in each such country which have expiration
dates specified on Schedule A. The date of expiration of a
patent described in this Section shall include any extension
granted to LICENSOR by virtue of any continuation,
continuations-in-part and divisional applications, including
reissues and reexamination applications and patents and
reexamination certificates, patent term extensions, Supplemental
Protection Certificates or like term extensions issuing to LICENSOR
in any country.
(2)
ARTICLE II
Paragraph 1 of Article II of the LICENSE shall be amended
to read as follows:
1.
Subject to Article II.3 below, the LICENSOR agrees to grant
and hereby grants to the LICENSEE an exclusive worldwide
royalty-bearing revocable right and licence, with rights to
sublicence, under the PATENT RIGHTS to use PLATINUM COMPLEXES, the
LICENSOR’S INFORMATION and the LICENSOR’S ONGOING
INFORMATION to make, have made, use, offer to sell, and have sold
PRODUCTS for use within the FIELD.
Paragraph 2 of Article II of the LICENSE shall be amended
to read as follows:
2. The
LICENSEE shall be entitled to sub-license any THIRD PARTY under
rights granted under Article II.1 hereof provided that the LICENSEE
shall remain responsible for all acts and omissions of such
sub-licensee as though they were by the LICENSEE. In particular,
the LICENSEE shall be responsible to the LICENSOR for payments due
in respect of sales by sub-licensees as though they were sales by
LICENSEE. The terms of any sub-license agreement shall provide that
upon termination of this Agreement, any
2
sub-licensee shall attorn to and accept the LICENSOR in place of
the LICENSEE such that any sub-license shall be deemed an agreement
between the LICENSOR and sub-licensee.
(3)
ARTICLE III
Paragraph 1 of Article III of the LICENSE shall be
amended to read as follows:
1. The
LICENSEE, its AFFILIATES and sub-licensees shall diligently perform
research and development on the use of JM 216 and other PLATINUM
COMPLEXES within the FIELD and on the formulation of PRODUCTS. The
LICENSEE, its AFFILIATE and sub-licensees shall exercise in the
performance of such research technical skill and competence of a
high calibre.
(4)
ARTICLE IV
Article IV of the LICENSE shall be amended to read as
follows:
1. The
LICENSEE, its AFFILIATES and sub-licensees shall use its best
efforts to test, evaluate and develop PRODUCTS so as to meet the
objectives detailed hereunder:
Objective
1
Submission of NDA to US FDA (hereinafter called the ‘First
MILESTONE&r
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